Wintringham Limited Trading AS Wintringham

[2025] FWCA 1620

[2025] FWCA 1620

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Wintringham Limited Trading AS Wintringham

(AG2025/837)

WINTRINGHAM COLLECTIVE AGREEMENT 2024

Aged care industry
COMMISSIONER TRAN	MELBOURNE, 14 MAY 2025

Application for approval of the Wintringham Collective Agreement 2024

1. Wintringham (ABN: 97 007 293 478) has applied for approval of an enterprise agreement known as the Wintringham Collective Agreement 2024 under s 185 of the Fair Work Act 2009.

1. The Agreement is a single enterprise agreement.

Individual Bargaining Representative’s Concerns

1. An individual employee bargaining representative indicated that they had concerns about approval of the enterprise agreement. I held a case management conference on 7 May 2025 to allow the bargaining representative to inform me of their concerns. The concerns related to clauses 27 – Overtime and 36 – Recall to the Workplace. Those concerns related to how the clauses do not reflect work practices and may mean that affected employees (non-direct care workers) would not be remunerated appropriately. I have considered the concerns raised and am of the view that they do not relate to matters that I must consider when approving an enterprise agreement. It was not identified to me whether the particular issues related to genuine agreement or the better off overall test. I am sympathetic to the concerns raised, but am of the view that they are not relevant to my considerations about approving the agreement.

Approval of Agreement

1. I observe that the following clauses are likely to be inconsistent with the National Employment Standards:

·   Post-reform casual conversion provisions – The Agreement does not make note of new employee choice conversion provisions which is available to eligible employees from February 2025.

·   Clause 44 – Annual Leave

·   Clause 51 – Compassionate Leave

1. I note clause 7.3 of the Agreement, which gives precedence to the NES and am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Employer has provided written undertakings. 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.

1. Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

1. The Australian Workers’ Union (AWU); the Australian Nursing and Midwifery Federation (ANMF); the Australian Municipal, Administrative, Clerical and Services Union (ASU); and the Health Services Union (HSU) lodged a Form F18 statutory declaration giving notice under s 183 of the Act that they want the Agreement to cover them. In accordance with s 201(2) of the Act, I note the Agreement covers the unions.

1. The Agreement is approved and, in accordance with s 54 of the Act, will operate from 21 May 2025.

1. In accordance with clause 4, the nominal expiry date of the Agreement is 30 April 2028.

COMMISSIONER

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APPENDIX A