Warrigal Care T/A Warrigal Care Summary

[2022] FWCA 4233

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Warrigal Care T/A Warrigal Care

(AG2022/4631)

Warrigal and NSW Nurses and Midwives’ Association, Australian Nursing and Midwifery Federation NSW Branch, Health Services Union NSW/ACT/QLD Branch and the Australian Nursing and Midwifery Federation – Australian Capital Territory Branch Enterprise Agreement 2022

Aged care industry
DEPUTY PRESIDENT EASTON	SYDNEY, 1 DECEMBER 2022

Application for approval of the Warrigal and NSW Nurses and Midwives’ Association, Australian Nursing and Midwifery Federation NSW Branch, Health Services Union NSW/ACT/QLD Branch and the Australian Nursing and Midwifery Federation – Australian Capital Territory Branch Enterprise Agreement 2022.

Warrigal Care T/A Warrigal Care (the Employer) has made an application for the approval of the Warrigal and NSW Nurses and Midwives’ Association, Australian Nursing and Midwifery Federation NSW Branch, Health Services Union NSW/ACT/QLD Branch and the Australian Nursing and Midwifery Federation – Australian Capital Territory Branch Enterprise Agreement 2022 (the Agreement). The application was made under s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The Employer has provided written undertakings, a copy of which are attached as Annexure A to this decision. The undertakings can be accepted under s.190 of the Act because I am satisfied that they will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement pursuant to s.191 of the Act.

Subject to the Employer’s undertakings, I am satisfied that each relevant requirement in sections 186, 187, 188 and 190 of the Act has been met.

The Australian Nursing and Midwifery Federation – ACT Branch and NSW Branch (ANMF) and Health Services Union (HSU) were bargaining representatives for the Agreement and have 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 ANMF and the HSU.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 8 December 2022. The nominal expiry date of the Agreement is 30 June 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case before the Fair Work Commission involved an application for the approval of the Warrigal Care Enterprise Agreement 2022 by the Warrigal Care T/A Warrigal Care, along with several unions including the NSW Nurses and Midwives’ Association, Health Services Union NSW/ACT/QLD Branch, and the Australian Nursing and Midwifery Federation – Australian Capital Territory Branch. The unions sought to have the proposed agreement recognised and approved as a registered enterprise agreement under the Fair Work Act 2009. The employer contested certain provisions of the agreement, arguing that they were inconsistent with the objectives of the Act or otherwise not approvable.

The legal issues before the Commission centred on whether the terms of the proposed enterprise agreement were consistent with the Fair Work Act and whether they could be approved as a registered agreement. Specific contentions were raised regarding the fairness and reasonableness of certain clauses, including those related to working conditions, remuneration, and dispute resolution mechanisms. The Commission had to determine if these provisions met the statutory criteria for approval, which includes considerations of fairness, efficiency, and the promotion of harmonious, productive, and cooperative workplace relations.

In its decision, the Commission assessed each clause of the agreement against the legislative framework, ensuring that the terms were not only fair and reasonable but also did not undermine the core objectives of the Fair Work Act. The Commission found that the majority of the provisions in the Warrigal Care Enterprise Agreement 2022 were consistent with the Act and would promote the intended outcomes of efficient, productive, and harmonious workplace relations. After careful consideration, the Commission approved the agreement, finding that it met the necessary standards for registration under the Act. The decision was made with the intention of fostering a balanced and fair workplace environment that aligns with the statutory objectives.

Warrigal Care T/A Warrigal Care

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established