TBG Senior Living Services Pty Ltd

[2022] FWCA 183

[2022] FWCA 183

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

TBG Senior Living Services Pty Ltd

(AG2021/8998)

tbG senior living services pty ltd, nswnma and hsu new south wales branch enterprise agreement 2020

Aged care industry
Commissioner Matheson	SYDNEY, 21 JANUARY 2022

Application for approval of the TBG Senior Living Services Pty Ltd, NSWNMA and HSU New South Wales Branch Enterprise Agreement 2020.

1. An application has been made for approval of an enterprise agreement. The application was made by TBG Senior Living Services Pty Ltd (ABN 63 074 316 797) (Applicant) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The enterprise agreement is a single enterprise agreement.

1. The title of the enterprise agreement subject of the application was stated as ‘TBG Senior Living Services Pty Ltd, NSWNWA and HSU New South Wales Branch Enterprise Agreement 2020’ in the Form F16, Form F17 and the enterprise agreement itself.

1. The Australian Nursing and Midwifery Federation advised the Commission that the reference to ‘W’ where ‘NSWNWA’ appears in the title of the Agreement should be a reference to ‘M’ so that that title of the Agreement reads as ‘TBG Senior Living Services Pty Ltd, NSWNMA and HSU New South Wales Branch Enterprise Agreement 2020’. The Applicant confirmed that the correct title of the agreement is ‘TBG Senior Living Services Pty Ltd, NSWNMA and HSU New South Wales Branch Enterprise Agreement 2020’ (Agreement) and applied for a correction pursuant to s.586 of the Act to amend the name of the Agreement in the Form F16, Form F17 and where the title of the Agreement appears in the Agreement itself to ‘TBG Senior Living Services Pty Ltd, NSWNMA and HSU New South Wales Branch Enterprise Agreement 2020’.

1. 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.

2. The Commission also identified an inconsistency between the minimum amount payable to supported wage employees in Items E.4.2 and E.10.3 of Schedule E of the Agreement. The Applicant applied for a correction seeking that the Commission exercise its powers pursuant to s.586 of the Act so that the reference to ‘$89’ in Item E.10.3 of Schedule E of the Agreement is replaced with ‘$90’. 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.

1. Since the application was made, the Commission sought further information in relation to pre-approval requirements. The Applicant provided a response to the issues raised on 21 January 2022. Among the concerns raised by the Commission was a concern that the application had not been made within 14 days after the Agreement was made pursuant to s.185(3)(a) of the Act. In particular, the Applicant’s response to question 25.2 of the Form F17 indicates that the Agreement was made on 28 November 2021. The Commission’s records indicate that the application for approval of the Agreement was lodged on 15 December 2021, 17 days after the Agreement was made.

1. The Applicant submitted that this was a result of a staff member leaving the business at the end of November 2021 with the effect that the Applicant did not have all of the relevant and necessary information to hand before the date of lodgement. The Applicant submitted that the slight delay has no practical effect on the terms offered and forecast pay outcomes and will not cause any disadvantage to employees or unions.

1. In all the circumstances, I consider it fair to extend the period for the making of the application to the date on which the application was made, being 15 December 2021. I grant the extension.

1. 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.

1. On the basis of the materials before the Commission, I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to the application for approval of the Agreement have been met.

1. 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.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 28 January 2022. The nominal expiry date of the Agreement is 30 June 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE514685  PR737657>