DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Wickro Pty Ltd T/A Homestyle Aged Care Services
(AG2019/3023)

HOMESTYLE AGED CARE SERVICES, ANMF AND HSU ENTERPRISE AGREEMENT 2017-2021

Aged care industry
DEPUTY PRESIDENT MASSON	MELBOURNE, 19 SEPTEMBER 2019

Application for approval of the Homestyle Aged Care Services, ANMF and HSU Enterprise Agreement 2017-2021.

[1] An application has been made for approval of an enterprise agreement known as the Homestyle Aged Care Services, ANMF and HSU Enterprise Agreement 2017-2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Wickro Pty Ltd T/A Homestyle Aged Care Services. 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. The undertakings are taken to be a term of 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 53.5 is inconsistent with the National Employment Standards (NES) as it provides additional content not otherwise provided for in the NES. 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] I note that while employees were provided with a Notice of Employee Representational Rights, the notice was not in the prescribed form, as it provided the Fair Work Commission as Fair Work Australia. The prescribed notice states that employees may direct questions to the Fair Work Ombudsman or Fair Work Commission. However, I am satisfied that in all of the circumstances and having regard to the Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others, 1 this constitutes a minor procedural or technical error for the purposes of s 188(2)(a). Further, I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2) of the Act.

[6] The Australian Nursing and Midwifery Federation (ANMF) and the Health Services Union (HSU) being bargaining representatives for the Agreement, 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 organisations.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 26 September 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 case of Wickro Pty Ltd T/A Homestyle Aged Care Services involved the applicant, Wickro Pty Ltd, seeking approval for the Homestyle Aged Care Services, Australian Nursing and Midwifery Federation (ANMF) and Health Services Union (HSU) Enterprise Agreement 2017-2021. The application was brought before the Fair Work Commission, an Australian body established to resolve workplace disputes and facilitate fair work practices. The dispute centred around the terms and conditions of employment for the workforce under the proposed enterprise agreement and whether it complied with the relevant legislative requirements.

The central legal issues the Commission was tasked with resolving involved the fairness and compliance of the proposed enterprise agreement with the Fair Work Act 2009. Specifically, the Commission had to determine if the agreement was free from any elements that would undermine its fairness and if it complied with the statutory requirements concerning the registration of agreements. Additionally, the Commission needed to assess whether the agreement adequately provided for the minimum entitlements of the employees involved.

In its reasoning, the Commission first considered the fairness of the proposed agreement, noting that it provided for a comprehensive set of terms and conditions that covered various aspects of employment, including wages, hours of work, and leave provisions. The Commission also examined the process through which the agreement was negotiated and the extent to which employee representatives were involved in the negotiations. After thorough deliberation, the Commission concluded that the proposed enterprise agreement was fair and did not contain any terms that would render it unfair. Furthermore, the Commission found that the agreement complied with the statutory requirements and provided for the minimum entitlements as mandated by law. Consequently, the Commission approved the application for the registration of the proposed enterprise agreement. The final orders included the approval and registration of the Homestyle Aged Care Services, ANMF and HSU Enterprise Agreement 2017-2021.

Wickro Pty Ltd T/A Homestyle Aged Care Services

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established