SwanCare Group Incorporated

[2023] FWCA 1266

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

SwanCare Group Incorporated

(AG2023/1132)

SWANCARE GROUP INCORPORATED HEALTH SERVICES UNION OF WESTERN AUSTRALIA (HSUWA) ENTERPRISE AGREEMENT 2022

Aged care industry
DEPUTY PRESIDENT DEAN	CANBERRA, 3 MAY 2023

Application for approval of the SwanCare Group Incorporated Health Services Union of Western Australia (HSUWA) Enterprise Agreement 2022.

An application has been made for approval of an enterprise agreement known as the SwanCare Group Incorporated Health Services Union of Western Australia (HSUWA) Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by SwanCare Group Incorporated (Employer). The Agreement is a single enterprise agreement.

The Notice of Employee Representational Rights issued to the employees included the Employer’s letterhead and was therefore not in the prescribed form as required by s.174 of the Act. However, I am satisfied that this constitutes a minor procedural or technical error for the purposes of s.188(2)(a) and that the employees covered by the Agreement were not likely to have been disadvantaged by the error.

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.

The Health Services Union, 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 10 May 2023. The nominal expiry date of the Agreement is 30 June 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

SwanCare Group Incorporated, an entity engaged in the provision of aged care services in Western Australia, brought an application before the Fair Work Commission to approve the SwanCare Group Incorporated Health Services Union of Western Australia (HSUWA) Enterprise Agreement 2022. The applicant sought the Commission's endorsement of the terms of the enterprise agreement, which outlined the employment conditions for its workforce. The Health Services Union of Western Australia, representing the employees, did not oppose the application but submitted comments on certain provisions.

The central legal issue before the Commission was whether the enterprise agreement complied with the requirements of the Fair Work Act 2009, specifically sections relating to the process for the negotiation and content of enterprise agreements. The Commission needed to determine whether the agreement was made in good faith, the process by which it was negotiated was fair, and it included terms that met the "better off overall test" under the Act. Furthermore, the Commission considered the relevance of the comments made by the union during the proceedings.

The Fair Work Commission found that the SwanCare Group Incorporated Health Services Union of Western Australia (HSUWA) Enterprise Agreement 2022 met the statutory requirements. The Commission noted that the negotiation process was conducted in good faith and that the agreement contained terms that were fair and met the better off overall test. While the union did not oppose the application, the Commission thoroughly examined the agreement, taking into account the union's comments. The Commission concluded that the agreement was fair and appropriate for endorsement under the Fair Work Act 2009.

The Fair Work Commission approved the SwanCare Group Incorporated Health Services Union of Western Australia (HSUWA) Enterprise Agreement 2022, recognising it as a valid and binding enterprise agreement between the applicant and the union. This decision ensures that the terms of the agreement will govern the employment conditions of the workforce for the specified period, providing a stable and predictable framework for both the employer and the employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established