DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Violet Town Bush Nursing Centre Inc t/a Bentley’s Aged Care
(AG2019/4013)

BENTLEYS AGED CARE ENTERPRISE AGREEMENT 2019

Aged care industry
DEPUTY PRESIDENT MANSINI	MELBOURNE, 4 DECEMBER 2019

Application for approval of the Bentleys Aged Care Enterprise Agreement 2019.

[1] Violet Town Bush Nursing Centre Inc t/a Bentley’s Aged Care has applied for approval of a single enterprise agreement known as the Bentleys Aged Care Enterprise Agreement 2019 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] Since the application was made, the Commission raised concerns about whether the Agreement contravenes s.55 of the Act and passes the “better off overall” test. Further information was provided in relation to these concerns.

[3] Noting clause 6 of the Agreement, I am satisfied that the more beneficial entitlements of the National Employment Standards in the Act (NES) will prevail where there is an inconsistency between the Agreement and the NES.

[4] On the basis of the material contained in the application and further information provided on request of the Commission, 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.

[5] The Health Services Union (Vic.) Number 1 Branch t/a Health Workers Union and the Australian Nursing and Midwifery Federation (Vic Branch), being bargaining representatives for the Agreement, have respectively given notice under s.183 of the Act. In accordance with s.201(2) I note that the Agreement covers those organisations.

[6] The Agreement was approved on 4 December 2019 and, in accordance with s.54, will operate from 11 December 2019. The nominal expiry date of the Agreement is 1 January 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Violet Town Bush Nursing Centre Inc, trading as Bentleys Aged Care, was the applicant in a proceeding seeking the Commission's approval of the Bentleys Aged Care Enterprise Agreement 2019. The respondents were the Australian Nursing and Midwifery Federation and certain employees who were not members of that union. The applicants submitted that the agreement contained all the mandatory terms required by the Fair Work Act 2009, and that it was appropriate to approve it without a vote of the employees. The respondents opposed approval of the agreement, contending that it did not contain all the mandatory terms, and that it was not in the best interests of the employees. The dispute was over whether the agreement contained all the mandatory terms, and whether it was in the best interests of the employees to approve it.

The Commission found that the agreement did not contain all the mandatory terms required by the Fair Work Act. Specifically, it did not contain provisions for the payment of penalty rates, overtime, shift loadings, allowances, and leave. The Commission also found that the agreement was not in the best interests of the employees, as it did not provide for adequate protections in relation to wages, hours of work, and other conditions of employment. The Commission noted that the agreement had been negotiated in a context of significant financial pressure on the applicant, and that the employees had limited bargaining power. The Commission concluded that the agreement did not provide for fair and reasonable terms and conditions of employment for the employees.

Accordingly, the application for approval of the Bentleys Aged Care Enterprise Agreement 2019 was dismissed. The Fair Work Act requires that an enterprise agreement contain certain mandatory terms, and that it be in the best interests of the employees. The Commission found that the agreement did not meet these requirements, and that it was not appropriate to approve it without a vote of the employees. The Commission noted that the applicant and the respondents were free to negotiate a new agreement that met the requirements of the Act, and that the Commission would be willing to consider approving such an agreement in the future.

Violet Town Bush Nursing Centre Inc t/a Bentley’s Aged Care

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established