Uniting Agewell Limited
[2023] FWCA 1211
•28 APRIL 2023
| [2023] FWCA 1211 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Uniting Agewell Limited
(AG2023/1019)
UNITING AGEWELL ENTERPRISE AGREEMENT (TASMANIA) 2022
| Aged care industry | |
| DEPUTY PRESIDENT BELL | MELBOURNE, 28 APRIL 2023 |
Application for approval of the Uniting AgeWell Enterprise Agreement (Tasmania) 2022.
An application has been made for approval of an enterprise agreement known as the Uniting AgeWell Enterprise Agreement (Tasmania) 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Uniting Agewell Limited. The Agreement is a single enterprise agreement.
Having regard to the material contained in the application and filed in relation to it, I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in sections 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.
The Australian Nursing and Midwifery Federation (ANMF) and Health Services Union (HSU), being bargaining representatives for the Agreement, indicated in their respective ‘Form F18s’ that they opposed the Agreement being approved. The basis of the opposition was that Agreement was said not to pass the ‘better off overall test’ for the purpose of s.193 of the Act. Broadly speaking, three categories of deficiency were identified: first, there are beneficial clauses in the underlying awards that are not (or not sufficiently) reflected by the terms of the Agreement; second, there are provisions of the Agreement that are said to be less beneficial than the National Employment Standards (NES) required under the Act; and, third, that the wage rates in the Agreement will fall to award rates by virtue of the Commission’s ‘Work Value’ decision for the aged care sector (which, in summary, requires future increases to wage rates for certain relevant awards).
Dealing with the above matters in reverse order, the ‘test time’ for assessing whether the Agreement passes the better off overall test is the time the application for the approval of the Agreement was made: s.193(6). That time was 12 April 2023 and, for that reason, the future changes to awards as a result of the Work Value decision is to be disregarded. In any case, I note that clause 9A of the Agreement sets out various matters relating to the employer’s intention to pass on wage increases arising from the Work Value changes.
For the concerns about the NES, I note that clause 5 of the Agreement provides for a NES-precedence clause, such that to the extent of any differences between the terms of the NES and the terms of the Agreement, the former shall prevail. I am satisfied clause 5 is sufficient to address those aspects of the unions’ concerns.
For the various provisions of the three underlying awards, the unions (largely correctly) identified some aspects of the Agreement that did not reflect, or reflect to the same extent, the provisions of the awards that were identified. Nonetheless, there were other benefits in the Agreement that exceeded those in the applicable awards (a number were identified in the employer’s ‘Form F17’ declaration) or where the awards made no provision at all. Most conditions are substantially the same in the Agreement as are provided for by the underlying awards, on balance.
Further, the Agreement provides above-award rates of pay as follows, as measured against the following awards: the Aged Care Award 2020, between 0.75% - 22.55% above the award; the Nurses Award 2020, between 22.68% - 77.24% above the award; and the Social, Community, Home Care and Disability Services Industry Award 2020, between 0.98% - 18.93% above the award.
In all the circumstances, I am satisfied that the Agreement passes the better off overall test.
The ANMF and HSU have also given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the organisations.
The Agreement was approved on 28 April 2023 and, in accordance with s.54 of the Act, will operate from 5 April 2023. The nominal expiry date of the Agreement is 2 January 2025.
DEPUTY PRESIDENT
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