Prom Country Aged Care Inc T/A Prom Country Aged Care

[2024] FWCA 4518

[2024] FWCA 4518

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Prom Country Aged Care Inc T/A Prom Country Aged Care

(AG2024/4087)

PROM COUNTRY AGED CARE ENTERPRISE AGREEMENT 2023

Aged care industry
COMMISSIONER CONNOLLY	MELBOURNE, 16 DECEMBER 2024

Application for approval of the Prom Country Aged Care Enterprise Agreement 2023

1. An application has been made for approval of an enterprise agreement known as the Prom Country Aged Care Enterprise Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Prom Country Aged Care Inc T/A Prom Country Aged Care (the Applicant). The Agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 13 November 2024.

1. The notification time for the Agreement under s.173(2) was 6 February 2023 and the Agreement was made on 14 October 2024.  Accordingly, the genuine agreement requirements the Agreement is to be assessed under are those applying before 6 June 2023 and the better off overall test (BOOT) is that applying on and from 6 June 2023. [1] 

1. On 26 November 2024, the Employer was invited to address aspects of the Agreement including through the provision of an undertaking.

1. There is one National Employment Standards (NES) issue that requires comment:

·   Deduction/withholding of monies due to the employee under the NES on termination: Clause 39.3(b) provides that if the employee fails to give the required notice of termination to the employer, the employer has the right to withhold from an employee’s termination pay an amount that is equal to the period of notice not given. We note that Clause 39.3(b) does not appear to limit the source of monies which may be deducted. The effect of this is that this clause appears to permit the employer to withhold monies owing to the employee under the NES (such as accrued but unused annual leave or long service leave on termination). This raises the issue that Clause 39.3(b) may be inconsistent with Chapter 2 Part 2.2 Division 2 of the Act.

1. Clause 6.2 of the Agreement acts as an effective NES precedence clause, in that it states that “This Agreement will be read and interpreted in conjunction with the NES.  Where there is an inconsistency between the Agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency.  The provisions in this Agreement otherwise apply.” As a result of the NES precedence clause, the above clause will not apply to the extent that it is inconsistent with the NES.

1. The Applicant has provided written undertakings, dated 10 December 2024, and a copy is attached in Annexure A. A copy of the undertaking has been provided to the bargaining representative and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives did not express any view on the undertaking.

1. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement, thus appearing to meet the requirements of s.190(3). The undertaking is taken to be a term of the Agreement.

1. As the Agreement does not contain a flexibility term which meets the requirements of s.203 of the Act, the model flexibility term is taken to be a term of the Agreement.

1. The “Health Services Union”, and “Australian Nursing and Midwifery Federation” 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) of the Act I note that the Agreement covers these organisations.

1. I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A of the Act as are relevant to this application for approval have been met.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 1 December 2026.

COMMISSIONER

Annexure A

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.

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