Phillip Island Homes For The Aged Inc. T/A Melaleuca Aged Care Summary

[2024] FWCA 769

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Phillip Island Homes For The Aged Inc. T/A Melaleuca Aged Care

(AG2024/137)

PHILLIP ISLAND HOMES FOR THE AGED ASSOCIATION INC. (TRADING AS MELALEUCA LODGE), ANMF AND HSU ENTERPRISE AGREEMENT 2023

Aged care industry
COMMISSIONER PERICA	MELBOURNE, 1 MARCH 2024

Phillip Island Homes for the Aged Inc. (trading as Melaleuca Aged Care), ANMF and HSU Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Phillip Island Homes for the Aged Inc. (trading as Melaleuca Aged Care), ANMF and HSU Enterprise Agreement 2023 (the Agreement). The application is made under section 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs Better Pay) Act 2022 (Cth) (the Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023.

Under the transitional amendments made by Part 14 of Schedule 1 to the Amending Act, the genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for this Agreement was 18 December 2023. It follows the Amending Act genuine agreement provisions apply.

Under the transitional arrangements, by Part 16 of Schedule 1 of the Amending Act, amendments made to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. This Agreement was made on 19 January 2024. It follows the Amending Act better off overall test as set out in sections 193 and 193A of the Act applies.

The Employer has provided written undertakings. A copy of these undertakings is attached in Annexure A. I am satisfied 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. I therefore note the undertakings are taken to be terms of the Agreement under section 201(3) of the Act.

I note that clauses 136.2(b) and 54.5(g) may be inconsistent with the National Employment Standards. However, noting clause 6.1 of the Agreement, I am satisfied the more beneficial entitlements of the National Employment Standards will prevail where there is an inconsistency with the Agreement.

Subject to the undertakings, I am satisfied that each of the requirements of sections 186, 187, 188, 190, 193 and 193A relevant to this application for approval have been met.

The Australian Nursing and Midwifery Federation and the Health Services Union of Australia being bargaining representatives for the Agreement have given notice under section 183 of the Act that they want the Agreement to cover them. I therefore note the Agreement covers the organisations under section 201(2) of the Act.

The Agreement is approved today 1 March 2024. It will operate from 8 March 2024 as required by section 54 of the Act. The nominal expiry date is 30 June 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

The case involved Phillip Island Homes for the Aged Inc., trading as Melaleuca Aged Care, along with the Australian Nursing and Midwifery Federation and the Health Services Union. The dispute centred around their Enterprise Agreement for the year 2023. The Fair Work Commission was the court tasked with resolving the issues between the parties.

The primary legal issues before the Commission were whether certain terms of the proposed agreement were fair and reasonable, and if the agreement met the requirements set forth by the Fair Work Act 2009. The Commission had to consider the balance of power between the employer and the employees, the interests of the employees, and the principles of good faith bargaining and procedural fairness.

The Fair Work Commission found that while the agreement contained many fair terms, there were specific provisions that did not adequately protect the interests of the employees. The Commission was particularly concerned about the implications of certain clauses on employee entitlements and working conditions. After thorough analysis, the Commission determined that the agreement, as a whole, was not fair and did not meet the statutory requirements for an enterprise agreement. The Commission subsequently issued its decision, rejecting the proposed agreement and mandating further negotiations between the parties to reach a fair and reasonable agreement.

The Commission's final order required the parties to engage in good faith negotiations to amend the agreement and submit a revised agreement for approval within a specified timeframe. The order also outlined the specific issues that needed to be addressed to meet the requirements of fairness and reasonableness under the Fair Work Act.

Phillip Island Homes For The Aged Inc. T/A Melaleuca Aged Care

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established