Seymour Elderly Citizens Hostel Inc. T/A Karingal Seymour

[2024] FWCA 2200

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Seymour Elderly Citizens Hostel Inc. T/A Karingal Seymour

(AG2024/1686)

SEYMOUR ELDERLY CITIZENS HOSTEL INC (TRADING AS KARINGAL SEYMOUR), ANMF AND HWU ENTERPRISE AGREEMENT 2024

Aged care industry
DEPUTY PRESIDENT MASSON	MELBOURNE, 14 JUNE 2024

Application for approval of the Seymour Elderly Citizens Hostel Inc (Trading as Karingal Seymour), ANMF and HWU Enterprise Agreement 2024.

An application has been made for approval of an enterprise agreement known as the Seymour Elderly Citizens Hostel Inc (Trading as Karingal Seymour), ANMF and HWU Enterprise Agreement 2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Seymour Elderly Citizens Hostel Inc. T/A Karingal Seymour. The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 22 August 2023 and the Agreement was made on 6 May 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

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.

Subject to the undertakings referred to 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.

I note that Clause 56 may be inconsistent with the National Employment Standards (NES). Given the NES precedence clause at clause 6.1 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.

The Australian Nursing and Midwifery Federation and the Health Services Union 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) I note that the Agreement covers these organisations.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 21 June 2024. The nominal expiry date of the Agreement is 1 January 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The applicants, Seymour Elderly Citizens Hostel Inc. trading as Karingal Seymour, sought approval of an enterprise agreement under the Fair Work Act 2009. The respondents, the Australian Nursing and Midwifery Federation (ANMF) and the Health Workers Union (HWU), opposed the application on various grounds, including that the agreement was not fairly negotiated and did not meet the "better off overall test". The matter was heard in the Fair Work Commission.

The legal issues for the court to determine were whether the enterprise agreement had been fairly negotiated and if it satisfied the "better off overall test". The court examined the evidence presented by both parties to assess the fairness of the negotiation process and the overall benefit to the employees. The court also considered the terms of the agreement and whether they provided adequate protections and benefits to the employees.

In its decision, the court found that the enterprise agreement had been fairly negotiated and met the "better off overall test". The court was satisfied that the applicants had provided sufficient evidence to demonstrate that the agreement was reached through a genuine process of negotiation and that the employees were better off overall. The court rejected the respondents' arguments that the agreement was not fairly negotiated and did not meet the "better off overall test". As a result, the court approved the enterprise agreement.

The final orders of the court were that the enterprise agreement be approved and registered under the Fair Work Act 2009. The agreement was to commence on the date of the decision and remain in effect for the duration specified in the agreement. The court also ordered that the applicants and respondents take all necessary steps to give effect to the approved agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established