The Sisters of Our Lady of China Health Care Pty Ltd T/A Pembroke Lodge

[2021] FWCA 6191

[2021] FWCA 6191

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

The Sisters of Our Lady of China Health Care Pty Ltd T/A Pembroke Lodge
(AG2021/6902)

THE SISTERS OF OUR LADY OF CHINA HEALTH CARE PTY LTD T/AS PEMBROKE LODGE, NSWNMA AND HSU NEW SOUTH WALES BRANCH ENTERPRISE AGREEMENT 2020

Aged care industry
COMMISSIONER MATHESON	SYDNEY, 8 OCTOBER 2021

Application for approval of The Sisters of Our Lady of China Health Care Pty Ltd t/as Pembroke Lodge, NSWNMA and HSU New South Wales Branch Enterprise Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as The Sisters of Our Lady of China Health Care Pty Ltd t/as Pembroke Lodge, NSWNMA and HSU New South Wales Branch Enterprise Agreement 2020 (Agreement). The application was made by The Sisters of Our Lady of China Health Care Pty Ltd T/A Pembroke Lodge (Applicant) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single enterprise agreement.

[2] Clause 12.3(b) of the Agreement contains an apparent error stating:

‘Before commencing part-time employment, the Employer and Employee will agree in writing the guaranteed minimum number of hours to be worked hours to be worked and the days of the week and shifts that will be worked’ (emphasis added).

[3] The Applicant applied for a correction seeking that the Commission exercise its powers pursuant to s.586 of the Act so that the clause reads:

‘Before commencing part-time employment, the Employer and Employee will agree in writing the guaranteed minimum number of hours to be worked and the days of the week and shifts that will be worked’.

[4] 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.

[5] Clause 38.1 of the Agreement prescribes shift penalties. The table in clause 38.1(a) contains the words:

‘Afternoon shift commencing after 10.00 a.m. and before 1:00 p.m’ (emphasis added).

[6] The Applicant applied for a correction seeking that the Commission exercise its powers pursuant to s.586 of the Act so that the clause reads:

‘Afternoon shift commencing at 10.00 a.m. and before 1:00 p.m’.

[7] 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.

[8] 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.

[9] The Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A of this decision (Undertakings). 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.

[10] Pursuant to s.190(3) of the Act, I accept the Undertakings.

[11] Subject to the Undertakings, and on the basis of the materials before the Commission, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to the application for approval of the Agreement have been met.

[12] The Australian Nursing and Midwifery Federation New South Wales Branch and Health Services Union NSW Branch, 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.

[13] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 15 October 2021. The nominal expiry date of the Agreement is 30 June 2024.

COMMISSIONER

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Annexure A