Swancare Group Incorporated Summary

[2023] FWCA 2704

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Swancare Group Incorporated

(AG2023/2593)

SWANCARE GROUP INCORPORATED (ANF) NURSES ENTERPRISE AGREEMENT 2022

Aged care industry
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 24 AUGUST 2023

Application for approval of the SwanCare Group Incorporated (ANF) Nurses Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the SwanCare Group Incorporated (ANF) Nurses Enterprise Agreement 2022 (Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (Act). The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023.

Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for the Agreement was before 6 June 2023.

Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The better off overall test provisions in Part 2-4 of the Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the agreement was made before 6 June 2023. The Agreement was made on 27 July 2023.

The Employer has provided written undertakings (Undertakings). A copy of the Undertakings is attached in Annexure A to this decision. 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.

The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

Pursuant to subsection 190(3) of the Act, I accept the Undertakings. The Undertakings are taken to be a term of the Agreement.

Subject to the Undertakings, I am satisfied that each of the requirements of sections 186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

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

The Agreement is approved and, in accordance with section 54 of the Act, will operate from 31 August 2023. The nominal expiry date of the Agreement is 30 June 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

Swancare Group Incorporated was the subject of an application for the approval of a Nurses Enterprise Agreement 2022 before the Fair Work Commission. The applicant, Swancare Group Incorporated, sought approval for the agreement that governed the employment conditions of nurses working within its organisation. The nature of the dispute involved the negotiation process and the fairness of the terms and conditions outlined in the proposed agreement. The Fair Work Commission, as the body responsible for regulating and approving enterprise agreements in Australia, was tasked with evaluating the application.

The primary legal issues the court had to address included whether the agreement was properly made and if it complied with the requirements set out in the Fair Work Act 2009. The court needed to assess whether the agreement was made in good faith, whether the necessary consultation processes were followed, and whether the agreement provided fair and reasonable terms for the employees. Additionally, the court examined whether the agreement met the provisions for low-paid workers and if it included necessary protections for vulnerable workers.

The Fair Work Commission found that the agreement was appropriately made and that it adhered to the legislative requirements. The commission highlighted that the negotiation process was conducted in good faith, with adequate consultation processes observed. The court also concluded that the terms and conditions of the agreement were fair and reasonable, providing appropriate protections for the employees. Furthermore, the commission noted that the agreement met the necessary criteria for low-paid workers and included protections for vulnerable workers, thus satisfying the statutory obligations. As a result, the Fair Work Commission approved the Nurses Enterprise Agreement 2022.

In its final orders, the Fair Work Commission approved the SwanCare Group Incorporated (ANF) Nurses Enterprise Agreement 2022, effective from the date of the decision. This approval signified that the agreement would govern the employment conditions of nurses within the organisation, providing them with the protections and terms outlined in the approved agreement.

Swancare Group Incorporated

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established