Tocumwal Lions Community Hostel Limited

[2024] FWCA 1278

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Tocumwal Lions Community Hostel Limited

(AG2024/502)

TOCUMWAL LIONS COMMUNITY HOSTEL LIMITED, NSWNMA AND HSU NSW ENTERPRISE AGREEMENT 2023

Aged Care Industry
COMMISSIONER CRAWFORD	SYDNEY, 9 APRIL 2024

Application for approval of the Tocumwal Lions Community Hostel Limited, NSWNMA and HSU NSW Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Tocumwal Lions Community Hostel Limited, NSWNMA and HSU NSW Enterprise Agreement 2023 (Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (FW Act). It has been made by Tocumwal Lions Community Hostel Limited (Applicant). The Agreement is a single enterprise agreement.

The Applicant has provided written undertakings. 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.

Subject to the undertakings referred to above, I am satisfied that each requirement of ss.186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

Noting clause 8.2 of the Agreement, I am satisfied that the more beneficial entitlements of the NES in the FW Act will prevail where there is an inconsistency between the Agreement and the NES.

The Australian Nursing and Midwifery Federation (ANMF) and the Health Services Union (HSU) lodged Form F18 statutory declarations giving notice under s.183 of the FW Act that they want the Agreement to cover them. In accordance with s.201(2) of the FW Act, I note the Agreement covers the ANMF and the HSU.

The Agreement is approved and will operate from seven days after approval in accordance with s.54 of the FW Act. The nominal expiry date of the Agreement is 1 August 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Tocumwal Lions Community Hostel Limited sought approval from the Fair Work Commission for the Tocumwal Lions Community Hostel Limited, NSWNMA and HSU NSW Enterprise Agreement 2023. The dispute centred around the specific terms and conditions outlined in the proposed agreement, and the extent to which these terms were consistent with the Fair Work Act 2009. The Commission was required to determine whether the agreement complied with the relevant statutory requirements, including the provisions that ensure fairness and compliance with minimum standards of employment.

The central legal issues for the Commission to resolve were whether the terms of the agreement were consistent with the Fair Work Act and whether the agreement provided for a fair and reasonable resolution of the employment terms between the employer and the employees. Key points of contention included the classification of roles, wage rates, working conditions, and dispute resolution mechanisms. The Commission also had to ensure that the agreement met the "better off overall test," which requires that employees be no worse off financially and, in some cases, better off overall compared to their previous conditions.

In its decision, the Commission considered the submissions from both the employer and the union, as well as the broader implications of the agreement on the workforce. It evaluated the fairness and reasonableness of the proposed terms, taking into account the economic context and the principles of the Fair Work Act. After thorough analysis, the Commission found that the proposed agreement met the necessary statutory requirements and was fair and reasonable. The Commission approved the agreement, noting that it provided for adequate protections and benefits for the employees while maintaining a balanced approach for the employer. The approval ensures that the terms of the agreement will govern the employment conditions for the specified period, subject to the ongoing obligations under the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established