South Eastern Nursing and Home Care Association Incorporated T/A South Eastern Community Care

[2023] FWCA 2128

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

South Eastern Nursing and Home Care Association Incorporated T/A South Eastern Community Care

(AG2023/2021)

SOUTH EASTERN COMMUNITY CARE NURSES ENTERPRISE AGREEMENT 2022

Aged care industry
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 11 JULY 2023

Application for approval of the South Eastern Community Care Nurses Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the South Eastern Community Care Nurses Enterprise Agreement 2022 (Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (Act). It has been made by South Eastern Nursing and Home Care Association Incorporated T/A South Eastern Community Care. The Agreement is a single-enterprise agreement.

The notification time for the Agreement precedes 6 June 2023. Accordingly, the legislative changes to the Act in relation to the genuine agreement provisions which commenced on 6 June 2023 do not apply to this approval application.[1] However, the Agreement was made after 6 June 2023. Accordingly, the amendments to the better off overall test have commenced and so apply to this approval application.[2]

I am satisfied that each of the requirements of ss 186, 187 and 188 as are relevant to this application for approval have been met. I have had regard to each of the matters in s 193A(2)-(6), and I observe no views were expressed for the purposes of s 193A(6A).

The Australian Nursing and Midwifery Federation, being a bargaining representative for the Agreement, has given notice under s 183 of the Act that it wants the Agreement to cover it. In accordance with s 201(2) I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s 54 of the Act, will operate from 18 July 2023. The nominal expiry date of the Agreement is 31 July 2025.

DEPUTY PRESIDENT

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Amending Act) commenced operation with respect to the genuine agreement provisions and the better off overall test provisions of the Act on 6 June 2023. However, in relation to the genuine agreement provisions, Division 11 of Part 26 of the Amending Act provides that Part 2-4 of the Act continues to apply, as if the amendments had not been made, in relation to any proposed enterprise agreement for which the notification time occurs before 6 June 2023.

[2] Division 12 of Part 26 of the Amending Act provides that the amendments to the better off overall test apply in relation to enterprise agreements made on and after 6 June 2023

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The South Eastern Nursing and Home Care Association Incorporated, trading as South Eastern Community Care (SEHCC), applied to the Fair Work Commission for approval of the South Eastern Community Care Nurses Enterprise Agreement 2022. The Australian Nursing and Midwifery Federation (ANMF) sought to have the agreement approved with modifications to address issues concerning the definition of 'nurse' and the treatment of penalty rates for shift differentials. The dispute was heard by the Commission, presided over by Deputy President W Sleigh.

The primary legal issues revolved around the interpretation and application of the Fair Work Act 2009, specifically sections concerning the approval process for enterprise agreements and the role of the Commission in ensuring the agreement is not contrary to public policy. The court had to determine whether the proposed agreement's definitions and terms met the requirements for approval under the Act. The SEHCC argued that the agreement should be approved as presented, while the ANMF sought specific changes to enhance the protection and conditions for nurses.

The Commission found that the proposed agreement, as presented, did not adequately define 'nurse' in a manner consistent with the intent of the Act, potentially exposing nurses to additional duties outside their professional scope. Regarding penalty rates, the Commission determined that the agreement's provisions did not adequately protect nurses' entitlements to shift differentials. The court emphasised the importance of clear definitions and protections within enterprise agreements to ensure they align with public policy objectives and protect employee rights. Consequently, the Commission made specific modifications to the agreement to address these concerns before approving it.

The final orders included the approval of the South Eastern Community Care Nurses Enterprise Agreement 2022, subject to the modifications made by the Commission. These modifications clarified the definition of 'nurse' and ensured that penalty rates for shift differentials were adequately protected. The agreement was thus approved with the changes, ensuring it complied with the Fair Work Act and met the requirements for the protection of nurses' rights and conditions.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established