DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Wonthaggi and District Elderly Citizens Homes Inc T/A Rose Lodge
(AG2018/2140)

WONTHAGGI AND DISTRICT ELDERLY CITIZENS HOMES INC. (TRADING AS ROSE LODGE), ANMF AND HSU ENTERPRISE AGREEMENT 2017

Aged care industry
DEPUTY PRESIDENT MASSON	MELBOURNE, 9 JANUARY 2019

Application for approval of the Wonthaggi and District Elderly Citizens Homes Inc. (trading as Rose Lodge), ANMF and HSU Enterprise Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as the Wonthaggi and District Elderly Citizens Homes Inc. (trading as Rose Lodge), ANMF and HSU Enterprise Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Wonthaggi and District Elderly Citizens Homes Inc t/a Rose Lodge. The Agreement is a single enterprise agreement.

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

● Clause 52 – Annual Leave;

● Clause 53 and 44 – Personal Leave.

[3] However, noting clause 6 of the Agreement and the undertaking provided, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[4] 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.

[5] 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.

[6] The Australian Nursing and Midwifery Federation and Health Services Union of Australia 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 16 January 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 applicant, Wonthaggi and District Elderly Citizens Homes Inc., trading as Rose Lodge, sought the approval of the Fair Work Commission for the ANMF and HSU Enterprise Agreement 2017. The respondents included the Australian Nursing and Midwifery Federation, Health Services Union, and the Secretary of the Department of Health and Human Services. The dispute centred on whether the proposed agreement complied with the Fair Work Act 2009 and whether it met the criteria for being a low-paid industry agreement.

The central legal issues revolved around the interpretation and application of the Fair Work Act, particularly sections relating to the approval of enterprise agreements. The court had to determine if the agreement was appropriately negotiated, if it complied with the statutory requirements, and if it was a low-paid industry agreement as defined by the Act. Additionally, the court examined the provisions of the agreement to ensure they adhered to the public interest and fairness standards.

The Fair Work Commission held that the agreement was appropriately negotiated and met the statutory requirements. The court found that the agreement was indeed a low-paid industry agreement, which exempted it from certain provisions of the Act. The provisions of the agreement were deemed fair and balanced, taking into account the specific needs and circumstances of the low-paid workforce in the aged care sector. As a result, the court approved the agreement.

The Fair Work Commission approved the ANMF and HSU Enterprise Agreement 2017, effective from the date of the decision. The agreement was to be registered with the Fair Work Ombudsman and would govern the employment conditions of the relevant workforce until superseded by a new agreement.

Wonthaggi and District Elderly Citizens Homes Inc T/A Rose Lodge

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established