Phillip Island Homes for the Aged Association Inc T/A Melaleuca Lodge

[2020] FWCA 2751

[2020] FWCA 2751

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Phillip Island Homes for the Aged Association Inc T/A Melaleuca Lodge
(AG2020/965)

PHILLIP ISLAND HOMES FOR THE AGED ASSOCIATION INC. (TRADING AS MELALEUCA LODGE), ANMF AND HSU ENTERPRISE AGREEMENT 2017

Aged care industry
DEPUTY PRESIDENT CLANCY	MELBOURNE, 26 MAY 2020

Application for approval of the Phillip Island Homes for the Aged Association Inc. (trading as Melaleuca Lodge), ANMF and HSU Enterprise Agreement 2017.

[1] Phillip Island Homes for the Aged Association Inc. T/A Melaleuca Lodge has made an application for approval of an enterprise agreement known as the Phillip Island Homes for the Aged Association Inc. (trading as Melaleuca Lodge), ANMF and HSU Enterprise Agreement 2017 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] I have noted that on 21 February 2020, the employees were notified that ballot papers would be distributed with payslips and the vote would commence on 16 March 2020, with the ballot box to be located in the General Nursing office of the employer. I have further noted that due to changed requirements for aged care associated with COVID-19, the voting did not commence as notified on 21 February 2020 and that employees were subsequently notified by email that voting would instead occur between 19 March 2020 and the close of business on 24 March 2020. Having regard to these matters, I am nonetheless satisfied the employees were not likely to have been disadvantaged as a result of this change in arrangements and that the Agreement has been genuinely agreed notwithstanding this minor technical error. 1

[3] I also observe that certain provisions within clause 54 of the Agreement (clause 54.5(c) and clause 54.5(e)) may be inconsistent with the National Employment Standards (NES). However, noting clause 6 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[4] Phillip Island Homes for the Aged Association Inc. T/a Melaleuca Lodge has provided written undertakings. A copy of the undertakings is attached in Annexure A. 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. The undertakings are taken to be a term of the Agreement.

[5] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, together with my conclusion at paragraph [2] above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[6] The Australian Nursing and Midwifery Federation (Victorian Branch) (ANMF Victorian Branch) and the Health Services Union Victorian No.1 Branch T/A Health Workers Union (HWU), being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) and based on the statutory declarations provided by these organisations, I note that the Agreement covers the ANMF Victorian Branch and the HWU.

[7] The Agreement was approved on 26 May 2020 and, in accordance with s.54, will operate from 2 June 2020. The nominal expiry date of the Agreement is 31 May 2021.

DEPUTY PRESIDENT

Annexure A

 1 Fair Work Act 2009, s.188(2).

Printed by authority of the Commonwealth Government Printer

<AE508140  PR719664>