JEWISH CARE (VICTORIA) INC. NURSES AND AGED CARE EMPLOYEES ENTERPRISE AGREEMENT 2025

Application for approval of the Jewish Care (Victoria) Inc. Nurses and Aged Care Employees Enterprise Agreement 2025

[1] An application has been made for approval of an enterprise agreement known as the Jewish Care (Victoria) Inc. Nurses and Aged Care Employees Enterprise Agreement 2025 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Jewish Care (Victoria) Inc (Jewish Care). The Agreement is a single enterprise agreement.

[2] Clause 49 of the Agreement provides for workplace delegates' rights. Section 205A of the Act provides that an enterprise agreement must include a delegates' rights term for workplace delegates to whom the agreement applies. A "delegates' rights term" is defined as a term in a fair work instrument that provides for the exercise of the rights of workplace delegates[1]. A note to the definition provides that the rights of workplace delegates are set out in s 350C of the Act, and the delegates' rights term must provide at least for the exercise of those rights. In Construction, Forestry and Maritime Employees Union v Australian Industry Group[2] a Full Court of the Federal Court identified several features of a workplace delegates' rights clause which appeared in modern Awards as being "errors" with respect to the provision for the rights set out in s 350C of the Act. These included limitations as to representation only to employees of the employer of the delegate, rather than all employees who work in the enterprise, limits on communication with employees "for the purpose of representing their industrial interests" and the making of delegates' entitlements conditional upon compliance with a range of requirements[3]. On 23 January 2026 modern Awards were varied to address these "errors"[4].

[3] Clause 49 of the Agreement contains similar limitations as to the exercise of delegates rights as identified by the Federal Court. The clause is therefore less less favourable than the delegates' rights term now appearing in the Nurses Award 2020 (the Award). Accordingly, pursuant to s 205A(2) of the Act, clause 49 of the Agreement has no effect and the workplace delegates' rights term prescribed by the Award is taken to be a term of the Agreement.

[4] However, it should be noted that below, the Agreement is to be varied in terms which relate to the workplace delegates rights provided for under the Agreement.

[5] Several concerns were raised with Jewish Care in relation to the Agreement. Further submissions were provided which dealt with these concerns which included modelling in relation to the likely operation of shift penalties based on what I was told were indicative roster patterns.

[6] On the basis of the material filed in support of the Application together with the further submissions made by Jewish Care, 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.

[7] The Australian Nursing and Midwifery Federation (ANMF) and the Health Services Union (HSU) both being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the ANMF and HSU.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate 7 days after approval.

[9] An application was made by Jewish Care that, if the agreement was approved, it be varied pursuant to s 218A of the Act, to correct two obvious errors, defects or irregularities (the variation application).

[10] Section 218A of the Act is akin to the slip rule found in s 602 of the Act, which allows the Commission to correct or amend an obvious error, defect or irregularity (whether in substance or form) in relation to a decision of the Commission. The evident purpose of s.218A is to remove complexity associated with varying enterprise agreements containing obvious errors, defects or irregularities by simplifying the process by which corrections may be made.

[11] The two amendments are as follows:

1. Clause 32(a) is amended to replace the word "after", with "before" as follows:

In addition to any other rates prescribed elsewhere in this Agreement for ordinary hours worked in a shift on a weekday, Saturday, Sunday or public holiday, an Employee whose ordinary hours of work finish after 6.00 p.m. and at or after before 8.00a.m. or commence at or after 6.00p.m. and before 6.30a.m. shall be paid an amount (Early AM / PM Shift allowance) as set out in Appendix 1 (for Registered Nurses and Enrolled Nurses) and Appendix 2 (for Aged Care Employees) per such period of duty.

1. Clause 49 of the Agreement is varied such that it reads as is set out in Annexure A.

[12] I am satisfied that these amendments are necessary to correct obvious errors or irregularities. The views of the bargaining representatives have been sought, and the ANMF agrees with the changes.

[13] The amendment will come into effect on the same day as the agreement commences operation.

[14] The agreement, as amended, is attached to this decision.

Article I. WORKPLACE DELEGATES' RIGHTS AND DELEGATE TRAINING LEAVE

(a) workplace delegate means a person who is appointed or elected, in accordance with the rules of an employee organisation, to be a delegate or representative (however described) for members of the organisation who work in a particular enterprise;

(i) enterprise has the meaning given by section 12 of the Act;

(ii) delegate's organisation means the employee organisation in accordance with the rules of which the workplace delegate was appointed or elected; and

(iii) eligible worker means members and persons eligible to be members of the workplace delegate's organisation who work in a particular enterprise.

(b) Before exercising entitlements under this clause, a workplace delegate must give the Employer written notice of their appointment or election as a workplace delegate. If requested, the workplace delegate must provide the Employer with evidence that would satisfy a reasonable person of their appointment or election.

(c) An Employee who ceases to be a workplace delegate must give written notice to the Employer within 14 days.

(d) Right of representation

• (i) A workplace delegate may represent the industrial interests of eligible workers who wish to be represented by the workplace delegate in matters including:

  • (1) consultation about major workplace change, subject to and in accordance with the provisions of clause 8 of this Agreement;

  • (2) consultation about changes to rosters or hours of work, subject to and in accordance with the provisions of clause 8 of this Agreement;

  • (3) resolution of disputes, subject to and in accordance with the provisions of clause 9 of this Agreement;

  • (4) disciplinary processes, subject to and in accordance with the provisions of clause 26 of this Agreement;

  • (5) enterprise bargaining where the workplace delegate has been appointed as a bargaining representative under section 176 of the Act or is assisting the delegate's organisation with enterprise bargaining; and

  • (6) any process or procedure within the Agreement or policy of the Employer under which eligible workers are entitled to be represented and which concerns their industrial interests.

(e) Entitlement to reasonable communication

• (i) A workplace delegate may communicate with eligible workers in relation to their industrial interests under subclause 36(d). This includes discussing membership of the delegate's organisation and representation with eligible workers.

• (ii) A workplace delegate may communicate with eligible workers during working hours or work breaks, or before or after work.

(f) Entitlement to reasonable access to the workplace and workplace facilities

• (i) The Employer must provide a workplace delegate with access to or use of the following workplace facilities:
  • (1) a room or area to hold discussions that is fit for purpose, private and accessible by the workplace delegate and eligible workers;
  • (2) a physical or electronic noticeboard;
  • (3) electronic means of communication ordinarily used in the workplace by the Employer to communicate with eligible workers and by eligible workers to communicate with each other, including access to Wi-Fi;
  • (4) a lockable filing cabinet or other secure document storage area; and
  • (5) office facilities and equipment including printers, scanners and photocopiers.
• (ii) The Employer is not required to provide access to or use of a workplace facility under subclause 36(f)(i) if:

  • (1) the workplace does not have the facility;

  • (2) due to operational requirements, it is impractical to provide access to or use of the facility at the time or in the manner it is sought; or

  • (3) the Employer does not have access to the facility at the enterprise and is unable to obtain access after taking reasonable steps.

(g) Entitlement to reasonable access to training

• (i) The Employer must provide a workplace delegate with access to up to 5 days of paid time during normal working hours for initial training and at least 2 paid days each subsequent year, to attend training related to representation of the industrial interests of eligible workers, subject to the following conditions:
  • (1) In each year commencing 1 July, the Employer is not required to provide access to paid time for training to more than one workplace delegate per 50 eligible workers, per Union covered by the Agreement.
  • (2) The number of eligible workers will be determined on the day a delegate requests paid time to attend training, as the number of eligible workers who are:

(3) Payment for a day of paid time during normal working hours is payment of the amount the workplace delegate would have been paid for the hours the workplace delegate would have been rostered or required to work on that day if the delegate had not been absent from work to attend the training.

(4) The workplace delegate must give the Employer not less than 5 weeks' notice (unless the Employer and delegate agree to a shorter period of notice) of the dates, subject matter, the daily start and finish times of the training, and the name of the training provider.

(5) If requested by the Employer, the workplace delegate must provide the Employer with an outline of the training content.

(6) The Employer must advise the workplace delegate not less than 2 weeks from the day on which the training is scheduled to commence, whether the workplace delegate's access to paid time during normal working hours to attend the training has been approved. Such approval must not be unreasonably withheld.

(7) The workplace delegate must, within 7 days after the day on which the training ends, provide the Employer with evidence that would satisfy a reasonable person of their attendance at the training.

(h) Exercise of entitlements

• (i) A workplace delegate's entitlements under this clause are subject to the conditions that the workplace delegate must, when exercising those entitlements:
  • (1) comply with the reasonable policies and procedures of the Employer, including reasonable codes of conduct and requirements in relation to occupational health and safety and acceptable use of ICT resources;
  • (2) not hinder, obstruct or prevent eligible workers exercising their rights to freedom of association.

(b) When exercising any entitlements under clause 49, a workplace delegate must, other than in the reasonable exercise of those entitlements:

(i) comply with their duties and obligations as an Employee; and

(ii) not hinder, obstruct or prevent the normal performance of work.

(ii) This clause does not require the Employer to provide a workplace delegate with access to electronic means of communication in a way that provides individual contact details for eligible workers.

(iii) This clause does not require an eligible worker to be represented by a workplace delegate without the worker's agreement.

[1] Fair Work Act 2009 s 12

[2] [2025] FWCFB 187

[3] See further Construction, Forestry and Maritime Employees Union v Australian Industry Group [2025] FWCFB 187

[4] Variation of modern awards to include a delegates' rights term [2026] FWCFB 5

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