Tenterfield Care Centre Limited

[2024] FWCA 1604

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Tenterfield Care Centre Limited

(AG2024/626)

TENTERFIELD CARE CENTRE LIMITED, NSWNMA AND HSU NSW ENTERPRISE AGREEMENT 2023

Aged Care Industry
COMMISSIONER CRAWFORD	SYDNEY, 1 MAY 2024

Application for approval of the Tenterfield Care Centre Limited, NSWNMA and HSU NSW Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Tenterfield Care Centre Limited, 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 Tenterfield Care Centre Limited (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 applicants in this case, Tenterfield Care Centre Limited, the NSW Nurses and Midwives' Association (NSWNMA) and the Health Services Union of NSW (HSU NSW), sought the court's approval for their Enterprise Agreement 2023. The respondents, who were not named in the text, did not oppose the application. The Fair Work Commission (FWC) had earlier certified the proposed agreement, but the applicants sought the court's approval as the agreement contained provisions that were not expressly permitted by the Fair Work Act 2009 (Cth).

The primary legal issue before the court was whether the provisions in the Enterprise Agreement, which were not expressly permitted by the Fair Work Act, could be approved by the court. The applicants argued that the provisions were necessary to address the specific circumstances of the Tenterfield Care Centre, including its location and the nature of its services. They contended that the FWC had correctly certified the agreement, and the court should affirm the certification. The respondents did not oppose the application, and the court was tasked with determining whether the provisions in question were consistent with the Act and whether the certification by the FWC was valid.

The court considered the provisions in the Enterprise Agreement and the circumstances of the Tenterfield Care Centre. It examined whether the provisions were necessary to address the specific needs of the centre and whether they were consistent with the objectives of the Fair Work Act. The court noted that the FWC had certified the agreement, indicating that the provisions were appropriate and necessary. The applicants had demonstrated that the provisions were necessary to address the unique circumstances of the Tenterfield Care Centre, and the court was satisfied that the FWC's certification was valid. Consequently, the court approved the Enterprise Agreement 2023.

The court's final orders were that the Enterprise Agreement 2023, as certified by the FWC, was approved. The provisions in the agreement that were not expressly permitted by the Fair Work Act were deemed necessary to address the specific circumstances of the Tenterfield Care Centre, and the court's approval was granted. This decision affirmed the FWC's certification and allowed the applicants to implement the agreed-upon terms and conditions of employment for the employees of the Tenterfield Care Centre.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established