DECISION

Fair Work Act 2009
s.185—Enterprise agreement

St Ezekiel Moreno Limited T/A St Ezekiel Moreno
(AG2021/6986)

ST EZEKIAL MORENO LIMITED, NSWNMA, ANMF NSW BRANCH AND HSU NEW SOUTH WALES BRANCH ENTERPRISE AGREEMENT 2020

Aged care industry
COMMISSIONER MATHESON	SYDNEY, 12 OCTOBER 2021

Application for approval of the St Ezekial Moreno Limited, NSWNMA, ANMF NSW Branch and HSU New South Wales Branch Enterprise Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the St Ezekial Moreno Limited, NSWNMA, ANMF NSW Branch and HSU New South Wales Branch Enterprise Agreement 2020 (Agreement). The application was made by St Ezekiel Moreno Limited T/A St Ezekiel Moreno (Applicant) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single enterprise agreement.

[2] It is declared in the Form F17 that the agreement was made on 14 August 2021. The Commission’s records indicate the application was lodged on 31 August 2021, 17 days after the Agreement was made. In all the circumstances I consider it fair to extend the period within which the application was made and do so pursuant to s.185(3)(b) of the Act to the day on which the application was made.

[3] Clause 12.3(b) of the Agreement contains an apparent error stating:

‘Before commencing part-time employment, the Employer and Employee will agree in writing the guaranteed minimum number of hours to be worked hours to be worked and the days of the week and shifts that will be worked’ (emphasis added).

[4] The Applicant applied for a correction seeking that the Commission exercise its powers pursuant to s.586 of the Act so that the clause reads:

‘Before commencing part-time employment, the Employer and Employee will agree in writing the guaranteed minimum number of hours to be worked and the days of the week and shifts that will be worked’.

[5] I am satisfied that this amendment should be allowed and that it is appropriate to do so pursuant to s.586 of the Act. I make the amendment.

[6] Clause 38.1 of the Agreement prescribes shift penalties. The table in clause 38.1(a) contains the words:

‘Afternoon shift commencing after 10.00 a.m. and before 1:00 p.m’ (emphasis added).

[7] The Applicant applied for a correction seeking that the Commission exercise its powers pursuant to s.586 of the Act so that the clause reads:

‘Afternoon shift commencing at 10.00 a.m. and before 1:00 p.m’.

[8] I am satisfied that this amendment should be allowed and that it is appropriate to do so pursuant to s.586 of the Act. I make the amendment.

[9] I observe that certain provisions of the Agreement may be inconsistent with the National Employment Standards (NES). However, noting clause 6.2 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.

[10] The Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A of this decision (Undertakings). I am satisfied that the effect of accepting the Undertakings is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or

(b) result in substantial changes to the Agreement.

[11] Pursuant to s.190(3) of the Act, I accept the Undertakings.

[12] Subject to the Undertakings, and on the basis of the materials before the Commission, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to the application for approval of the Agreement have been met.

[13] The Australian Nursing and Midwifery Federation and 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) of the Act, I note that the Agreement covers the organisations.

[14] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 19 October 2021. The nominal expiry date of the Agreement is 30 June 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

St Ezekiel Moreno Limited, trading as St Ezekiel Moreno, applied for approval of their Enterprise Agreement 2020 with the NSW Nurses and Midwives' Association, ANMF NSW Branch, and HSU New South Wales Branch. The application was made to the Fair Work Commission, which needed to determine whether the agreement complied with the relevant provisions of the Fair Work Act 2009.

The primary legal issue was whether the enterprise agreement met the requirements set out in the Act, specifically whether it provided for the fair and equitable treatment of employees, and whether it was free from any unlawful or unfair content. This included examining whether the agreement contained terms that could be considered to have an adverse effect on the employees' rights, such as excessive working hours or inadequate notice periods. The Commission also needed to consider whether the agreement was genuinely negotiated and whether it had been properly certified by the relevant union officials.

In reaching its decision, the Commission considered the evidence presented by the parties, including the negotiations process and the content of the agreement. The Commission found that the agreement was fairly negotiated and contained terms that were not adverse to the employees. The agreement provided for reasonable working hours, adequate notice periods, and other terms that were fair and equitable. The Commission also noted that the agreement had been properly certified by the relevant union officials. Based on these findings, the Commission approved the enterprise agreement, finding that it met the requirements of the Act. The Commission ordered that the agreement be registered and become binding on the parties from the date of the decision.

St Ezekiel Moreno Limited T/A St Ezekiel Moreno

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established