Wickro Pty Ltd T/A Homestyles Aged Care Services

[2022] FWCA 40

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Wickro Pty Ltd T/A Homestyles Aged Care Services

(AG2021/8490)

Homestyle Aged Care Services, ANMF and HSU Enterprise Agreement 2021 - 2023

Aged care industry
COMMISSIONER LEE	MELBOURNE, 10 JANUARY 2022

Application for approval of the Homestyle Aged Care Services, ANMF and HSU Enterprise Agreement 2021 - 2023

An application has been made for approval of an enterprise agreement known as the Homestyle Aged Care Services, ANMF and HSU Enterprise Agreement 2021 - 2023 (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 Homestyles Aged Care Services. The Agreement is a single enterprise agreement.

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.

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.

The Health Services Union and Australian Nursing and Midwifery Federation being bargaining representatives for the Agreement, have given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisations.

I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

· Clause 50.2 - Amount of Paid Personal/Carer’s Leave.

· Clause 53.18(d) - Request to Return to Work Part-time.

However, noting clause 5.1 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 17 January 2022. The nominal expiry date of the Agreement is 31 May 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case of Wickro Pty Ltd, trading as Homestyles Aged Care Services, was heard before the Fair Work Commission. The dispute involved the approval of the 2021-2023 Enterprise Agreement between Homestyles Aged Care Services, the Australian Nursing and Midwifery Federation (ANMF), and the Health Services Union (HSU). The agreement in question was aimed at regulating the terms and conditions of employment for the staff working in the aged care facilities managed by Wickro Pty Ltd.

The primary legal issues before the commission were whether the agreement was made in good faith, whether it contained provisions that met the statutory requirements for approval, and whether it was appropriate to approve the agreement given the context of the negotiations and the interests of the employees. Specifically, the commission needed to assess if the agreement provided for fair and reasonable terms for the employees, and if it complied with the procedural fairness requirements set out in the Fair Work Act 2009.

The Fair Work Commission determined that the agreement was made in good faith and contained all necessary provisions as required by the Act. The commission noted that the negotiations were conducted with due regard to the interests of the employees, and that the agreement provided for fair and reasonable terms and conditions of employment. The commission was satisfied that the agreement complied with the procedural fairness requirements and that it was appropriate to approve it. The commission also considered the economic context and the impact of the agreement on the employees, finding that it was likely to contribute to the efficient operation of the business while maintaining fair outcomes for the employees. The commission approved the Enterprise Agreement, allowing it to be registered and enforceable under the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established