TLC Aged Care

[2024] FWCA 450

[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

1. 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.

1. 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.

1. 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.

1. 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.

1. 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.

1. 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.

1. 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).

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.

1. 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.

1. 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.

1. 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.

1. 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

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Annexure A