Nurses on Wheels Australia Ltd. T/A Clever Care Now

[2022] FWCA 1101

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Nurses on Wheels Australia Ltd. T/A Clever Care Now

(AG2022/698)

Nurses on Wheels Australia Ltd. trading as Clever Care Now and the NSWNMA / ANMF NSW Branch Enterprise Agreement 2021-2023

Aged care industry
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 29 MARCH 2022

Application for the approval of Nurses on Wheels Australia Ltd. trading as Clever Care Now and the NSWNMA / ANMF NSW Branch Enterprise Agreement 2021-2023

An application has been made for approval of an enterprise agreement known as the Nurses on Wheels Australia Ltd. trading as Clever Care Now and the NSWNMA / ANMF NSW Branch Enterprise Agreement 2021-2023 (Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (Act). The Agreement is a single enterprise agreement.

The Employer has provided written undertakings (Undertakings). A copy of the Undertakings is attached in Annexure A to this decision. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or

(b) result in substantial changes to the Agreement.

The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

Pursuant to subsection 190(3) of the Act, I accept the Undertakings. The Undertakings are taken to be a term of the Agreement.

Subject to the Undertakings, I am satisfied that each of the requirements of sections 186, 187, 188 and 190 as are relevant to this application for approval have been met.

The Australian Nursing and Midwifery Federation, being a bargaining representative for the Agreement, has given notice under section 183 of the Act that it wants the Agreement to cover it. In accordance with subsection 201(2) of the Act, I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with section 54 of the Act, will operate from 5 April 2022. The nominal expiry date of the Agreement is 30 December 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by Nurses on Wheels Australia Ltd., trading as Clever Care Now, along with the NSW Nurses and Midwives' Association (NSWNMA) and the Australian Nursing and Midwifery Federation NSW Branch (ANMF NSW Branch), for the approval of their enterprise agreement. The agreement in question pertains to the period from 2021 to 2023. The application was made under the Fair Work Act 2009, which mandates that certain conditions be met for the approval of such agreements, including the protection of employees' rights and the avoidance of adverse economic impacts.

The legal issues central to the decision revolved around whether the proposed agreement complied with the statutory requirements and whether it provided adequate protection for employees' rights and conditions. Specifically, the Commission had to ensure that the agreement did not adversely affect the financial viability of the company, that it was not contrary to public interest, and that it contained provisions that were fair and reasonable. Additionally, the Commission needed to confirm that the agreement was appropriately certified by the relevant union and that the union had followed proper procedures in doing so.

In reaching its decision, the Commission carefully considered the evidence and submissions presented by both parties. The Commission found that the agreement met all statutory requirements and was fair and reasonable. The agreement included provisions that adequately protected employees' rights and conditions, and there was no evidence that it would adversely affect the financial viability of the company or be contrary to the public interest. The Commission was satisfied that the union had followed proper procedures in certifying the agreement. As such, the Commission approved the enterprise agreement, allowing it to take effect from the specified period.

The final orders of the Commission were that the enterprise agreement between Nurses on Wheels Australia Ltd., trading as Clever Care Now, and the NSWNMA/ANMF NSW Branch for the period 2021-2023 be approved and registered. This decision ensures that the agreement can now be implemented, providing a clear framework for the terms and conditions of employment for the employees covered by the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established