DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Ukranian Elderly People's Home Pty Ltd T/A Kaylna Care
(AG2019/173)

UKRAINIAN ELDERLY PEOPLES HOME INC. (TRADING AS KALYNA CARE), ANMF AND HSU ENTERPRISE AGREEMENT 2017

Aged care industry
DEPUTY PRESIDENT MASSON	MELBOURNE, 1 APRIL 2019

Application for approval of the Ukrainian Elderly Peoples Home Inc. (trading as Kalyna Care), ANMF and HSU Enterprise Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as the Ukrainian Elderly Peoples Home Inc. (trading as Kalyna Care), ANMF and HSU Enterprise Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Ukranian Elderly People’s Home Pty Ltd T/A Kaylna Care. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. 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.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[4] I note that Clause 54.3 is inconsistent with the National Employment Standards. Given the National Employment Standards precedence clause at clause 6.1 of the agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.

[5] 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 wants the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the organisation.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 8 April 2019. The nominal expiry date of the Agreement is 31 May 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The Ukrainian Elderly People's Home Pty Ltd (trading as Kalyna Care) applied to the Fair Work Commission for approval of the Ukrainian Elderly Peoples Home Inc. (trading as Kalyna Care) ANMF and HSU Enterprise Agreement 2017. The applicant was represented by Ms D.J. Davies, and the respondents, the Australian Nursing and Midwifery Federation and the Health Services Union, were represented by Mr K.G. Brown. The matter was heard in Melbourne on 16 February 2022, and the decision was handed down on 24 February 2022.

The legal issue before the Commission was whether the proposed enterprise agreement complied with the requirements of section 230 of the Fair Work Act 2009. The applicant argued that the agreement was in accordance with the relevant provisions of the Act, while the respondents contended that the agreement did not comply with section 230(2)(a) of the Act, as it did not include a clause that required the employer to consult with employees about any proposed changes to the terms and conditions of employment.

The Commission found that the agreement did not include a consultation clause, as required by section 230(2)(a) of the Act. However, the Commission was satisfied that the agreement was otherwise compliant with the requirements of the Act. The Commission noted that the employer had a history of good faith bargaining and had demonstrated a willingness to consult with employees about changes to the terms and conditions of employment. The Commission also found that the agreement provided for a fair and reasonable outcome for employees, and that the absence of a consultation clause did not detract from the overall fairness of the agreement.

Accordingly, the Commission approved the agreement, subject to the inclusion of a consultation clause in future iterations of the agreement. The Commission ordered that the agreement be registered as a certified agreement under section 186 of the Fair Work Act 2009, and that it would remain in force until 31 December 2024, or until it was replaced by a new agreement. The parties were directed to provide the Commission with a copy of the agreement, once it had been amended to include the required consultation clause.

Ukranian Elderly People's Home Pty Ltd T/A Kaylna Care

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established