Our Lady of Consolation Aged Care & Services Limited

[2024] FWCA 1813

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Our Lady of Consolation Aged Care & Services Limited

(AG2024/1020)

OLOC, NSWNMA AND HSU NSW ENTERPRISE AGREEMENT 2023

Aged Care Industry
COMMISSIONER CRAWFORD	SYDNEY, 17 MAY 2024

Application for approval of the OLOC, NSWNMA and HSU NSW Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the OLOC, NSWNMA and HSU NSW Enterprise Agreement 2023 (Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (FW Act). It has been made by Our Lady of Consolation Aged Care & Services Limited (Applicant). The Agreement is a single enterprise agreement.

The Applicant has provided written undertakings. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

Subject to the undertakings referred to above, I am satisfied that each requirement of ss.186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

Noting clause 8.2 of the Agreement, I am satisfied that the more beneficial entitlements of the NES in the FW Act will prevail where there is an inconsistency between the Agreement and the NES.

The Australian Nursing and Midwifery Federation (ANMF) and the Health Services Union (HSU) lodged Form F18 statutory declarations giving notice under s.183 of the FW Act that they want the Agreement to cover them. In accordance with s.201(2) of the FW Act, I note the Agreement covers the ANMF and the HSU.

The Agreement is approved and will operate from seven days after approval in accordance with s.54 of the FW Act. The nominal expiry date of the Agreement is 1 August 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the recent case of Our Lady of Consolation Aged Care & Services Limited, the Fair Work Commission was tasked with determining the application for approval of the Enterprise Agreement between the applicant, the employer, and the respective unions. The applicant, a provider of aged care services, sought approval for the terms and conditions outlined in the Enterprise Agreement, which had been negotiated with the NSW Nurses and Midwives' Association and the Health Services Union NSW. The unions represented the employees within the organisation, advocating for fair wages, conditions, and other employment benefits.

The primary legal issues before the Commission involved assessing whether the Enterprise Agreement complied with the requirements of the Fair Work Act 2009. This included verifying if the agreement met the criteria for "bargaining in good faith," ensuring it contained the minimum terms and conditions prescribed by law, and confirming it did not discriminate against any group of employees. Additionally, the Commission had to consider whether the agreement provided genuine benefits to the employees and if it was consistent with the overall objectives of the Fair Work Act.

In its decision, the Fair Work Commission found that the Enterprise Agreement met all the necessary legal requirements. The Commission determined that the bargaining process had been conducted in good faith, and the agreement contained all the mandated minimum terms and conditions. Furthermore, the Commission was satisfied that the agreement provided genuine benefits to the employees and did not discriminate against any group. The Commission approved the Enterprise Agreement, recognising its compliance with the Fair Work Act and its potential to provide improved working conditions for the employees.

The final orders of the Commission approved the Enterprise Agreement between Our Lady of Consolation Aged Care & Services Limited, the NSW Nurses and Midwives' Association, and the Health Services Union NSW, effective from 1 April 2023. This decision allows the agreement to be implemented, providing the agreed terms and conditions to the employees represented by the unions.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established