The Willows Private Nursing Home Pty Ltd and others
[2012] FWA 9349
•6 NOVEMBER 2012
[2012] FWA 9349 |
|
DECISION |
Fair Work Act 2009
s 185 - Application for approval of a single-enterprise agreement
The Willows Private Nursing Home Pty Ltd and others
(AG2012/11749, AG2012/11911, AG2012/11993)
DEPUTY PRESIDENT SAMS | SYDNEY, 6 NOVEMBER 2012 |
Application for approval of numerous aged care industry enterprise agreements.
[1] This decision relates to three applications, filed pursuant to s 185 of the Fair Work Act 2009 (‘the Act’), by employers involved in operating aged care facilities in NSW (‘the applicants’). The applicants seek the approval of Fair Work Australia (FWA) in relation to three single enterprise agreements (‘the Agreements’), identified in Annexure A. All the applicants were represented by Leading Age Services Australia NSW-ACT (‘Leading Age’). The Agreement was negotiated with the NSW Nurses’ and Midwives’ Association of NSW (‘the Nurses’ and Midwives’ Association’), the Australian Nursing Federation (NSW Branch) (‘the Nursing Federation’) and the Health Services Union NSW Branch (‘the HSU’) (collectively, ‘the Unions’).
[2] For convenience, and as a matter of commonsense, all three matters were joined, by consent, at an e-hearing in Chambers of the applications on 31 October 2012. This was so because the Agreements are all relevantly identical, with the same terms and conditions reflecting an industry wide template agreement which has been negotiated between the parties and applied to these and other similar agreements approved by FWA in recent times. I note that thirty-eight similarly identical agreements were recently approved by me in [2012] FWAA 7735, a further eleven in [2012] FWA 8728 and four more in [2012] FWA 8939.
[3] The reference instruments to which the Agreements are to be compared for the purposes of the Better Off Overall Test (‘BOOT’) are as follows:
• Nurses Award [MA000034]
• Aged care Award [MA000018]
• Nursing Home, &C Nurses (State) Award (NAPSA) [AN120387]
• Aged Care General Services (State) Award (NAPSA) [AN 1200011]
• Charitable Sector Aged and Disability Care Services (State) Award (NAPSA) [AN120117]
• Nurses (Private Sector) Redundancy (State) Award (NAPSA) [AN120117]
[4] In each of the applications, the employer submitted a Form 17 setting out the comparative relationship between the terms and conditions of the Agreement and the relevant reference instruments. The Unions were involved in the negotiations for all of the Agreements and have filed Form F18s in each case, in which they support the applications and seek to be covered by the Agreements listed in Annexure A. Pursuant to s 201(2) of the Act, I note that each of the Unions shall be covered by each of the Agreements listed in Annexure A. The Unions support the submissions of the applicant and agree that the Agreements meet the BOOT. In this respect, I note that the Agreements maintain conditions relating to pay rates of relevant Notional Agreements Preserving State Awards (‘NAPSAs’) that had been lost in the Modern Award process. In addition, the Agreements also provide for other benefits which are either not in the relevant reference instruments, or are in excess of the corresponding entitlements contained in the reference instruments. These include:
• improved long service leave provisions;
• enhanced redundancy benefits;
• casual conversion improvements;
• provisions for a medication allowance, in charge allowance, continuing education allowance and service allowance;
• improved higher duties provisions; and
• the provision for a Team Leader’s position.
[5] While the Agreements do contain a small number of less beneficial conditions and entitlements than the relevant reference instruments, I am satisfied, when viewed overall, that the Agreements all meet the BOOT. I note the Agreements contain the mandatory flexibility and consultation terms. I further note that the dispute resolution procedures provide for conciliation and arbitration by FWA and consent arbitration in respect to workload management issues. I note that a signed undertaking has been provided in relation to one of the Agreements (AG2012/11911). This undertaking is identical in terms to the undertakings provided, at my request, in relation to the other previously approved template agreements and clarifies classification levels and corrects some minor drafting errors. The undertaking is attached to the agreement and, pursuant to s 191(1) of the Act, will become a term of this Agreement. The other two Agreements (AG2012/11749 and AG2012/11993) have been drafted with the relevant classification levels and drafting errors already corrected.
[6] I will issue individual decisions specifying that each of the Agreements listed in Annexure A is to be approved with an operative date, pursuant to s 54 of the Act, of 6 November 2012 and a nominal expiry date of 30 June 2015. However, I note that all of the employees to be covered by the Agreements have been, or will be paid, the first increase in wages from 1 July 2012.
DEPUTY PRESIDENT
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Annexure A
AG2012/11749 The Willows Private Nursing Home Pty LTd NSWNMA & HSU NSW Branch Enterprise Agreement 2012
AG2012/11911 Australian Hospital Administration Pty Ltd NSWNA & HSU East Branch Enterprise Agreement 2012
AG2012/11993 TGB Senior Living, NSWNMA & HSU NSW Branch Enterprise Agreement 2012
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