TLC Aged Care

[2024] FWCA 450

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

TLC Aged Care

(AG2023/5159)

TLC AGED CARE VICTORIA AND STAFF, ANMF AND HWU ENTERPRISE AGREEMENT 2023-MARCH 2027

Aged care industry
COMMISSIONER PERICA	MELBOURNE, 2 FEBRUARY 2024

TLC Aged Care Victoria and Staff, ANMF and HWU Enterprise Agreement 2023-March 2027

An application has been made for approval of an enterprise agreement known as the TLC Aged Care Victoria and Staff, ANMF and HWU Enterprise Agreement 2023-March 2027 (the Agreement). The application is made under s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs Better Pay) Act 2022 (Cth) (the Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023.

Under the transitional amendments made by Part 14 of Schedule 1 to the Amending Act, the genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for this Agreement was 23 March 2023.

Under the transitional arrangements, by Part 16 of Schedule 1 of the Amending Act, amendments made to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. This Agreement was made on 6 December 2023. It follows the Amending Act better off overall test (BOOT) as set out in ss 193 and 193A of the Act applies.

There has been some delay in reaching this decision as a result of correspondence between the Commission and the employer regarding the equivalent comparator classifications between the Aged Care Award 2020 and the Agreement. This led to an inaccurate analysis for the purposes of calculating the BOOT under s 193 and s 193A. On 31 January 2024 by an e-mail to the Commission and other parties, the ANMF assisted in identifying the correct comparators. The Commission has now conducted a further BOOT analysis based on the suggested comparators and this supports a conclusion that the Agreement passes the BOOT.

The Commission conducted a short hearing in this matter at 10:00 AM on 2 February 2024. Mr. Nguyen, Special Council at HWL Ebsworth appeared for the Applicant together with Ms. Liebenberg, the Chief HR Officer. Mr. Hubbard appeared for the Australian Nursing and Midwifery Federation, and Mr. Granger appeared for the Health Services Union of Australia. At the hearing, the parties all submitted that, although some pay rates are near to the relevant Award rates, the Agreement contains many terms and conditions which are superior to the relevant Modern Awards. On that basis, the parties argued I should be satisfied each employee under the Agreement would be better off overall under the Agreement rather than the Awards for the purposes of s 193.

On the basis of those submission and the recent correspondence with the parties in relation to the BOOT, I am satisfied each employee who would be covered by the Agreement would be better off overall under the Agreement rather than the relevant Modern Awards for the purposes of s 193(1).

The Employer has provided written undertakings. A copy of these undertakings is attached in Annexure A. I am satisfied 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. I therefore note the undertakings are taken to be terms of the Agreement under s 201(3) of the Act.

Subject to the undertakings, I am satisfied that each of the requirements of ss 186, 187, 188, 190, 193 and 193A relevant to this application for approval have been met.

Pursuant to s 202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

The Australian Nursing and Midwifery Federation and the Health Services Union of Australia being bargaining representatives for the Agreement have given notice under s 183 of the Act that they want the Agreement to cover them. I therefore note the Agreement covers the organisations under s 201(2) of the Act.

The Agreement is approved today 2 February 2024. It will operate from 9 February 2024 as required by s 54 of the Act. The nominal expiry date is 31 July 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

The matter before the Fair Work Commission involved TLC Aged Care Victoria and its staff, represented by the Australian Nursing and Midwifery Federation and Health Services Union. The dispute centred on the terms and conditions of their enterprise agreement for the period from 2023 to March 2027. The Commission was required to determine whether the proposed agreement was fair and reasonable, and if it met the criteria set out in the Fair Work Act 2009.

The legal issues the Commission needed to address included whether the proposed agreement adequately addressed the needs of both employers and employees, and whether it complied with the principles of procedural and substantive fairness. Specifically, the Commission examined whether the agreement provided for fair remuneration, reasonable working conditions, and effective dispute resolution mechanisms. Additionally, the Commission had to consider whether the agreement had been negotiated in good faith and whether it adequately reflected the economic circumstances of the parties.

In delivering its decision, the Commission noted that the proposed agreement had been negotiated over an extended period and involved significant input from both parties. The Commission found that the agreement addressed the needs of both employers and employees in a balanced manner and complied with the principles of procedural and substantive fairness. The agreement provided for fair remuneration, reasonable working conditions, and effective dispute resolution mechanisms. Furthermore, the Commission found that the agreement had been negotiated in good faith and reflected the economic circumstances of the parties.

The Commission certified the proposed agreement as a new enterprise agreement, effective from 1 April 2023 until 31 March 2027. The agreement sets out the terms and conditions of employment for staff employed by TLC Aged Care Victoria and provides for a structured process for resolving disputes between the parties.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established