New Horizons Enterprises Ltd

[2013] FWCA 165

[2013] FWCA 165

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

New Horizons Enterprises Ltd
(AG2012/14277)

NEW HORIZONS AGED CARE AND NSWNMA ENTERPRISE AGREEMENT 2012 - 2014

Aged care industry
DEPUTY PRESIDENT SAMS	SYDNEY, 9 JANUARY 2013

Application for approval of the The New Horizons Aged Care and NSWNMA Enterprise Agreement 2012 - 2014.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by New Horizons Enterprises Ltd (the ‘applicant’) which seeks the approval of Fair Work Australia (‘FWA’) of a single enterprise agreement to be known as the New Horizons (the ‘Agreement’). The Agreement was negotiated with the New South Wales Nurses and Midwives Association and the Australian Nurses Federation - New South Wales Branch (the ‘Unions’). The Agreement will cover 60 employees who are engaged as nursing staff at the applicant’s aged facility in North Ryde, New South Wales and is expressed to cover all nursing staff employed by the applicant in New South Wales. For the purposes of s 186(3) of the Act, I regard the group of employees proposed to be covered by this Agreement as having been fairly chosen.

[2] The employees were last notified of their representational rights on 2 February 2012, and voting for the Agreement’s approval took place between 6 December and 12 December 2012. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 45 of the 48 employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 17 December 2012, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Ms Judi Higgin, Chief Executive Officer, identified the Nurses Award 2010 [MA000034] and the Nursing Homes & C. (State) Award [AN120387] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Ms Higginsaid that the Agreement provides for a number of conditions that are in excess of, or are more beneficial, than the terms of the relevant reference instruments and that there are no less beneficial terms. I note, however, that the Agreement provides for an ordinary span of hours of 12 hours, rather than the 10 hours provided under the reference instruments, and that the on-call allowance has been reduced to one rate of $19.19 from previous rates of $22.76 on Monday-Friday and $40.12 on Sundays (referred to in a comparison document as ‘contingent negatives’). However, the Agreement also provides for increased rates of pay, eight weeks paid parental leave for the birth mother (or primary care giver in cases of adoption), and for an increase to wages and allowances from 14 June 2012 (already undertaken by administrative action) and a second increase to wages and allowances from 1 July 2013. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 34 and 31 respectively, and a disputes resolution procedure at clause 42 provides for conciliation and arbitration by FWA.

[4] The Union had filed a Declaration in relation to the application (Form 18) supporting the approval of the Agreement and giving notice that it wished to be covered by the Agreement (s 183). For the purposes of s 201(2) of the Act, I note that the Union is to be covered by the Agreement.

[5] Upon reviewing the terms of the preapproval process documentation and the Agreement itself, I am satisfied that all of the requirements of the Act, in particular ss 180, 186, 187 and 188, in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the New Horizons Aged Care and NSWNMA Enterprise Agreement 2012 - 2014.Pursuant to s 54 of the Act, the Agreement shall operate from 28 December 2012 and have a nominal expiry date of 30 June 2014.

DEPUTY PRESIDENT

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