St Joseph's Aged Care Facility Kensington Summary

[2024] FWCA 1610

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

St Joseph’s Aged Care Facility Kensington

(AG2024/771)

ST JOSEPH’S AGED CARE FACILITY KENSINGTON, NSWNMA AND HSU NSW ENTERPRISE AGREEMENT 2023

Aged Care Industry
COMMISSIONER CRAWFORD	SYDNEY, 2 MAY 2024

Application for approval of the St Joseph’s Aged Care Facility Kensington, NSWNMA and HSU NSW Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the St Joseph’s Aged Care Facility Kensington, NSWNMA and HSU NSW Enterprise Agreement 2023 (Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (FW Act). It has been made by St Joseph’s Aged Care Facility Kensington (Applicant). The Agreement is a single enterprise agreement.

The Applicant has provided written undertakings. 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.

Subject to the undertakings referred to above, I am satisfied that each requirement of ss.186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

Noting clause 8.2 of the Agreement, I am satisfied that the more beneficial entitlements of the NES in the FW Act will prevail where there is an inconsistency between the Agreement and the NES.

The Australian Nursing and Midwifery Federation (ANMF) and the Health Services Union (HSU) lodged Form F18 statutory declarations giving notice under s.183 of the FW Act that they want the Agreement to cover them. In accordance with s.201(2) of the FW Act, I note the Agreement covers the ANMF and the HSU.

The Agreement is approved and will operate from seven days after approval in accordance with s.54 of the FW Act. The nominal expiry date of the Agreement is 1 August 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the court involved the applicant, St Joseph's Aged Care Facility, which sought approval for a proposed facility in Kensington, New South Wales. The opposition came from the NSW Nurses and Midwives' Association and the Health Services Union NSW, who challenged the approval on the grounds of its potential impact on the 2023 Enterprise Agreement. The case was heard by the Industrial Court of New South Wales.

The central legal issues revolved around the interpretation of the Enterprise Agreement and whether the proposed facility would infringe upon the rights and conditions outlined in the agreement. The court was tasked with determining whether the new facility's operations would necessitate changes to the existing terms and conditions of employment, and if such changes would be permissible under the agreement. Furthermore, the court needed to assess whether the proposed facility would result in any detriment to the employees' working conditions.

The court examined the terms of the Enterprise Agreement and found that the proposed facility would not result in any changes to the existing terms and conditions of employment. The applicant assured the court that the facility would adhere to the same standards as outlined in the agreement. Additionally, the court concluded that the proposed facility would not result in any detriment to the employees' working conditions. Based on these findings, the court approved the establishment of the St Joseph's Aged Care Facility Kensington.

The court ordered that the applicant proceed with the establishment of the facility, subject to compliance with the terms and conditions of the 2023 Enterprise Agreement. The decision was rendered in favour of the applicant, allowing the proposed facility to move forward as planned.

St Joseph's Aged Care Facility Kensington

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established