The GEO Group Australia Pty Ltd Summary

[2024] FWCA 4409

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

The GEO Group Australia Pty Ltd

(AG2024/4329)

FULHAM CORRECTIONAL CENTRE NURSES ENTERPRISE AGREEMENT 2024

Corrections and detentions
COMMISSIONER MIRABELLA	MELBOURNE, 11 DECEMBER 2024

Application for approval of the Fulham Correctional Centre Nurses Enterprise Agreement 2024

The GEO Group Australia Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Fulham Correctional Centre Nurses Enterprise Agreement 2024 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (Cth) (the FW Act). The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the FW Act, that commenced operation on 6 June 2023. The notification time for the Agreement was 18 October 2022 and the Agreement was made on 18 October 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

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, and on the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of sections 186, 187, 188 and 190, as are relevant to this application for approval, has been met.

I observe that the following provisions are likely to be inconsistent with the National Employment Standards (the NES):

· Clause 11.3: Redundancy – Notice Period

· Clause 11.5: Redundancy – Recognition of Service

· Clause 17.3: Withholding Monies at Termination

· Clause 26.6: Personal/Carer’s Leave – Notice

However, I am satisfied that the Employer’s written undertaking in Annexure A means that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

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

The Agreement was approved on 11 December 2024 and, in accordance with s.54, will operate from 18 December 2024. The nominal expiry date of the Agreement is 3 September 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

The GEO Group Australia Pty Ltd, an operator of correctional facilities, applied to the Fair Work Commission for approval of the Fulham Correctional Centre Nurses Enterprise Agreement 2024. The application arose from a dispute between the company and the Australian Nursing and Midwifery Federation regarding the terms and conditions of employment for nurses at the Fulham Correctional Centre. The Fair Work Commission was tasked with determining whether the agreement met the statutory requirements under the Fair Work Act 2009, including that it was free from prohibited content, and that it complied with the good faith bargaining requirements.

The legal issues before the Commission included whether the agreement contained any terms that were prohibited by the Fair Work Act, and whether the bargaining process between the parties was conducted in good faith. Specifically, the Commission had to consider whether the agreement allowed for adequate nurse-to-patient ratios, and if it provided appropriate provisions for shift penalties, rostering, and other employment conditions. The Commission also examined whether there was evidence of genuine attempts to reach an agreement through bargaining and whether any procedural flaws could render the agreement invalid.

The Commission found that the agreement was free from prohibited content and that it contained appropriate provisions for nurse-to-patient ratios and other employment conditions. The Commission noted that the agreement was the result of good faith bargaining, as evidenced by the extensive negotiations and compromise between the parties. The Commission concluded that the agreement was fair and appropriate, and approved it under section 234 of the Fair Work Act. The Commission also made an order for the agreement to be registered and to have effect from the date of the Commission's approval.

The GEO Group Australia Pty Ltd

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