Serbian Community Welfare Association of SA Inc trading as Pennwood Aged Care Services

[2025] FWCA 1379

[2025] FWCA 1379

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Serbian Community Welfare Association of SA Inc trading as Pennwood Aged Care Services

(AG2025/515)

THE PENNWOOD AGED CARE SERVICES ENTERPRISE AGREEMENT 2023-2026

Aged care industry
COMMISSIONER MIRABELLA	MELBOURNE, 8 MAY 2025

Application for approval of the Pennwood Aged Care Services Enterprise Agreement 2023 - 2026

1. The Serbian Community Welfare Association of SA Inc, trading as Pennwood Aged Care Services (the Employer), has made an application for approval of an enterprise agreement known as the Pennwood Aged Care Services Enterprise Agreement 2023-2026 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the FW Act). The Agreement is a single enterprise agreement.

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 FW Act, that commenced operation on 6 June 2023. The notification time for the Agreement was 29 May 2023 and the Agreement was made on 14 February 2025. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

1. For the purpose of satisfying the requirement in s.186(2)(a) that the Agreement was genuinely agreed to by the employees, the Fair Work Commission (the Commission) must consider whether the Employer has taken all reasonable steps to explain the Agreement to the employees and that explanation was provided in a manner appropriate to the circumstances and needs of the employees pursuant to s.180(5) of the FW Act and paragraph 8 of the Statement of Principles on Genuine Agreement. The Applicant’s materials indicated an issue with clarity in the explanation of the Agreement to employees. On the basis of the material contained in the application and further accompanying material provided, I am satisfied that the Agreement was genuinely agreed to.

1. There was a relatively low voter turnout for the Agreement vote (with only 87 of 191 employees casting a vote), although of those who voted, the majority voted in favour of the Agreement (54 of 87 voters voted to approve the Agreement). The Applicant made all reasonable efforts to encourage voting and engaged a provider to conduct the electronic balloting, which included contacting the employees. On the basis of the material contained in the application and further accompanying material provided, I am satisfied that each of the requirements of s.186, 187, 188, and 190 as are relevant to this application for approval, have been met.

1. The Notice of Employee Representation Rights (NERR) is unclear on whether employees knew they were in a classification covered by the Agreement at the time the NERR was provided. On the basis of the material contained in the application and further accompanying material provided, I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error in the NERR. As a result, I am satisfied that the Agreement has been genuinely agreed to within the meaning of s.188(5) of the FW Act.

1. The Employer 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.

1. Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements

of sections 186, 187, 188 and 190, as are relevant to this application for approval, has been
 met.

1. The Agreement contains a a flexibility term that does not meet the requirements of the FW Act. Pursuant to s.202(4) and Clause 107 of Schedule 1 of the Act, the model flexibility term as prescribed by the Fair Work Regulations 2009 (Cth) is taken to be a term of the Agreement.

1. I observe that the following provision is likely to be inconsistent with the National Employment Standards (the NES): 

·     Clause 25.7: Compassionate Leave

1. However, noting clause 9 the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Health Service Union (HSU) and the Australian Nursing and Midwifery Federation (South Australian Branch) (ANMF), being bargaining representatives for the Agreement, have each given notice under s.183 of the FW Act that they want the Agreement to cover them. In accordance with s.201(2), and based on the declarations provided by the organisations, I note that the Agreement covers the organisations.

1. At clause 24.2(d), there was an apparent inconsistency in shift penalties and their definitions relating to afternoon shift allowances. The Applicant has clarified that it does not roster Aged Care employees for afternoon shifts.

1. The Agreement provides for a definition of a shift worker at clause 24.2(d) of the Agreement. In doing so, it makes references the ordinary hours of a day worker as defined by Clause 22.2(a), presumably of the Award, as the Agreement does not provide this definition. However, it is not clear from Clause 24.2(d) if Clause 22.2(a) is meant to reference the Award. Additionally, the definition of a Home Care Shift worker at Clause 24.2(d) of the Agreement appears inconsistent with Clause 31.2 of the Award.

1. The Applicant submits that there is a typographical error with reference to clause 22.2(a) within clause 24.2(d)(ii) of the Agreement. The Applicant submits that the reference at 24.2(d)(ii) is corrected by replacing the text ‘clause 22.2(a)’ at 24.2(d)(ii) with the text ‘clause 20.1’. The Applicant requests that the Commissioner exercise its powers to rectify the error. The Applicant seeks to vary the Agreement under s.218A of the FW Act to correct the obvious error.

1. I am satisfied that the Agreement contains an obvious error. It is obvious that the text ‘clause 22.2(a)’ was a typographical error. The Employer provided an updated signed copy of the Agreement which corrected this typographical error.

1. The Commission’s discretion to vary the Agreement under s.218A has been enlivened. I am satisfied that the errors outlined at [12]–[15] should be corrected by varying the Agreement. Clause 24.2(d)(ii) of the Agreement is deleted to remove text ‘clause 22.2(a)’ and replaced with ‘clause 20.1’, as set out in Annexure B of this Decision. There are no grounds of which I am aware which would tend against the exercise of my discretion to vary the Agreement.

1. I Order,[1] pursuant to s.218A of the Act, that the Agreement be varied to correct the errors outlined at paragraphs [12]–[16].

1. The Agreement is approved and, in accordance with s.54, will operate from 15 May 2025. The nominal expiry date of the Agreement is 31 December 2027.

COMMISSIONER

Annexure A

Annexure B

[1] PR787003.

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