Presbyterian Care Victoria Ltd T/A Kirkbrae Presbyterian Homes

[2024] FWCA 4245

[2024] FWCA 4245

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Presbyterian Care Victoria Ltd T/A Kirkbrae Presbyterian Homes

(AG2024/3623)

PRESBYTERIAN CARE VICTORIA LTD (TRADING AS KIRKBRAE PRESBYTERIAN HOMES), ANMF AND HWU ENTERPRISE AGREEMENT 2023

Aged care industry
COMMISSIONER ALLISON	MELBOURNE, 3 DECEMBER 2024

Application for approval of the Presbyterian Care Victoria Ltd (trading as Kirkbrae Presbyterian Homes), ANMF and HWU Enterprise Agreement 2023

1. Presbyterian Care Victoria Ltd trading as Kirkbrae Presbyterian Homes (the Employer) has made an application, pursuant to s.185 of the Fair Work Act 2009 (the Act), for approval of a single enterprise agreement known as the Presbyterian Care Victoria Ltd (trading as Kirkbrae Presbyterian Homes), ANMF and HWU Enterprise Agreement 2023.

1. The Australian Nursing and Midwifery Federation (ANMF) and the Health Services Union Victoria No 1 Branch, trading as the Health Workers Union (HWU) [BB1] being bargaining representatives for the Agreement, have each given notice under s. 183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the organisation.

1. There were several cross-referencing errors in clause 43 of the Agreement. The Employer has provided an updated copy of the Agreement which corrected these errors. I am satisfied that this constituted an obvious error, defect, or irregularity and I will amend the Agreement accordingly pursuant to s.218A of the Act. 

1. The following provision may be inconsistent with the National Employment Standards (NES):

   ·  Clause 54.9.2, relating to parental leave, provides that where the pregnancy terminates after the completion of 20 weeks, during the notified period/s the employee is entitled to paid special maternity leave not exceeding the amount of paid primary carer/secondary carer leave available under Clause 54.2, and thereafter, to unpaid special maternity leave. This may be inconsistent with s. 80 of the Act, which provides that if an employee has been pregnant and the pregnancy ends after a period of gestation of at least 12 weeks otherwise than by the birth of a living child they may take unpaid special maternity leave;
   
   

2. However, noting the NES precedence undertaking provided by the Employer, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. Clause 24.7 of the Agreement provides for weekend and public holiday penalties for casual employees. Clause 24.7 provides these rates for Enrolled Nurses and Aged Care Employees only and is silent as to Registered Nurses. The Employer has provided an undertaking to resolve this issue.

1. The Agreement references broken shifts in clause 43.4.2. However, broken shifts are not defined in the Agreement, and the Agreement appears to be silent in relation to an employee’s entitlements regarding broken shifts, which are provided at clause 22.8 of the Aged Care Award. The Employer has provided an undertaking to resolve this issue.

1. The agreement is silent on sleepover provisions. It is unclear whether employees are required to work sleepover shifts. Where this is the case, rates of pay will not be high enough to compensate for the silent entitlements as per clause 22.9 of the Aged Care Award. The Employer has provided an undertaking to resolve this issue.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 10 December 2024. The nominal expiry date of the Agreement is 1 May 2026. 

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

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Annexure A

[BB1]I have copied this from HWU’s F18