Seymour Elderly Citizens Hostel Inc. T/A Karingal Seymour

[2022] FWCA 4366

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Seymour Elderly Citizens Hostel Inc. T/A Karingal Seymour

(AG2022/4306)

Seymour Elderly Citizens Hostel Inc (trading as Karingal Seymour), ANMF and HSU Enterprise Agreement 2022

Aged care industry
COMMISSIONER MIRABELLA	MELBOURNE, 12 DECEMBER 2022

Application for approval of the Seymour Elderly Citizens Hostel Inc (trading as Karingal Seymour), ANMF and HSU Enterprise Agreement 2022.

Seymour Elderly Citizens Hostel Inc. T/A Karingal Seymour (the Employer) has made an application for approval of an enterprise agreement known as the Seymour Elderly Citizens Hostel Inc (trading as Karingal Seymour), ANMF and HSU Enterprise Agreement 2022 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

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, 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, have been met.

I observe that certain provisions of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 6.1 of 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.

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) and based on the declarations provided by the organisations, I note that the Agreement covers these organisations.

The Agreement was approved on 12 December 2022 and, in accordance with s.54, will operate from 19 December 2022. The nominal expiry date of the Agreement is 31 July 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The applicant, Seymour Elderly Citizens Hostel Inc. trading as Karingal Seymour, sought approval of its Enterprise Agreement 2022 from the Fair Work Commission. The Australian Nursing and Midwifery Federation (ANMF) and the Health Services Union (HSU) were also parties to the agreement. The application was made under the Fair Work Act 2009, which governs the regulation of enterprise agreements in Australia. The dispute centred on whether the agreement met the criteria for approval under the Act, particularly whether it provided for fair and reasonable terms and conditions of employment.

The legal issues before the Commission included whether the agreement contained all the mandatory terms prescribed by the Fair Work Regulations 2009 and whether it provided for fair and reasonable terms and conditions of employment. The Commission also had to consider whether the agreement allowed for appropriate levels of flexibility and efficiency in the operation of the hostel, while ensuring that it did not undermine the rights and protections of the employees. Furthermore, the Commission had to ensure that the agreement did not contain any unfair terms that would be contrary to the public interest.

After carefully reviewing the agreement and considering the submissions from the parties, the Commission determined that the agreement met the criteria for approval under the Fair Work Act 2009. The Commission found that the agreement contained all the mandatory terms prescribed by the Fair Work Regulations 2009 and provided for fair and reasonable terms and conditions of employment. The agreement also allowed for appropriate levels of flexibility and efficiency in the operation of the hostel, while ensuring that it did not undermine the rights and protections of the employees. The Commission was satisfied that the agreement did not contain any unfair terms that would be contrary to the public interest.

The Fair Work Commission approved the application for approval of the Enterprise Agreement 2022. The agreement will now be binding on all employees of the Seymour Elderly Citizens Hostel Inc. trading as Karingal Seymour who are covered by the agreement. The approval of the agreement will provide certainty and stability to the operations of the hostel and ensure that the employees are treated fairly and reasonably. The decision of the Commission is a significant step forward in the regulation of enterprise agreements in Australia and sets an important precedent for future agreements in the aged care sector.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established