NORFOLK ISLAND HEALTH AND RESIDENTIAL AGED CARE SERVICE ENTERPRISE AGREEMENT 2024-2028

Application for approval of the Norfolk Island Health and Residential Aged Care Service Enterprise Agreement 2024-2028 - application granted

[1] Norfolk Island Health and Residential Aged Care Service ("the Employer") has applied for approval of an enterprise agreement known as Norfolk Island Health and Residential Aged Care Service Enterprise Agreement 2024-2028 ("the Agreement"). The Application was made under section 185 of the Fair Work Act 2009 ("the Fair Work Act"). The Agreement is a single enterprise agreement.

[2] The Employer submits and the QNMU Branch of the Australian Nursing and Midwifery Federation ("ANMF") agrees that the Employer is a national system employer. I accept this submission.

[3] A party's application for the Commission's approval of an enterprise agreement must be accompanied by a signed copy of that agreement.[1] A copy of an enterprise agreement is a signed copy only if it is signed by the employer covered by the agreement and at least 1 representative of the employees covered by the agreement, and it includes each signatory's full name and address, and an explanation of their authority to sign.[2] The Agreement as filed was unclear as to the employer signatory's authority to sign. The employer signatory filed a revised signature page on 4 September 2025. The ANMF supplied a separate signature page. It is not in question that the union was a bargaining representative for the Agreement.

[4] I exercise the power in section 586 of the Fair Work Act,[3] under paragraph (a) and/or paragraph (b) of that section, to correct any error in the application, and/or waive any irregularity in the form or manner in which it has been made, arising out of the signature pages provided. Both the revised signature page and the separate signature page will be incorporated into the Agreement as approved.

[5] The Notice of Employee Representational Rights appears to have been given in an outdated version of the prescribed form. For the purposes of subsection 188(5) I am satisfied that this was a minor technical error and not likely to disadvantage any employees in the circumstances.

[6] The Employer was of the view that some of the 42 casuals referred to in its declaration would not have worked in the seven days prior to the ballot commencing, but could not say how many. However, given that 67 of 98 employees voted, and of those 67, 60 voted in favour of approval, I consider that the margins are sufficient to allow me to reach the requisite state of satisfaction regardless.

[7] The Employer and the ANMF submit, and I accept, that the delegates' rights clause in the Agreement is no less favourable to employees than the corresponding clauses in the relevant Awards.

[8] The Employer submits and the ANMF agrees that the definition of 'shiftworker' contained in clause 6 of the Agreement applies for the purposes of the additional week of annual leave. The ANMF submits that this definition is more favourable to employees than the definitions of shiftworker at Clause 22.2(b) of the Nurses Award 2020 and Clause 28.2(a) of the Aged Care Award 2010. I accept these submissions.

[9] Noting the earlier undertaking provided, I am satisfied that the more beneficial entitlements of the National Employment Standards ("NES") in the Fair Work Act will prevail where there is an inconsistency between the Agreement and the NES.

[10] I will now deal with certain matters relevant to the Better Off Overall Test ("the BOOT").

[11] The Employer did not provide classification matching for employees under the Health Professionals and Support Services Award 2020. It has since provided classification matching.

[12] Appendix 16 also refers to Carpenters for skilled trades. The Employer has provided a further undertaking in that regard.

[13] Clause 60 and Appendices 16 and 17 of the Agreement refer to apprentices. The Agreement does not appear to provide for rates of pay for apprentices. However, the Employer says it does not currently employ any apprentices and has no intention of employing apprentices during the period of the Agreement, and the ANMF has not contradicted this. I consider I can take this assertion into account given it is not contested.[4]

[14] The Employer submits and the ANMF agrees that the minimum engagement for casual employees in the Agreement is no less favourable than the corresponding entitlement in the relevant Awards. I accept this submission.

[15] The Employer submits and the ANMF agrees that the Sunday penalty rates contained in the Agreement are no less favourable than the corresponding entitlements in the relevant Awards.

[16] The Employer has given written undertakings in accordance with section 190 of the Fair Work Act. The undertakings are attached as Annexures A and B to this decision. I am satisfied that each undertaking is not likely to cause financial detriment to any employee covered by the Agreement and does not result in substantial changes to the Agreement. The undertakings are taken to be terms of the Agreement.

[17] With the undertakings now given, and after having regard to the Statement of Principles on Genuine Agreement as well as the application and declarations filed in this matter, I am satisfied that each of the requirements of sections 186, 187, 188 and 190 of the Fair Work Act, as are relevant to this application for approval, have been met.

[18] The ANMF lodged a declaration in the prescribed form[5] giving notice under s.183 of the Fair Work Act that it wants the Agreement to cover it. In accordance with subsection 201(2) of the Fair Work Act, I note the Agreement covers the ANMF.

[19] The Agreement is approved and will operate in accordance with section 54 of the Fair Work Act. The nominal expiry date of the Agreement is 17 November 2029.

[1] Fair Work Act 2009 s 185(2)(a).

[2] Fair Work Act 2009 s 185(5) and Fair Work Regulations 2009 (Cth) r 2.06A.

[3] See Australian Nursing and Midwifery Federation v Uniting Church in Australia Property Trust (Q.) [2020] FWCFB 848, [128]-[129], applying CFMMEU v Griffiths Cranes Pty Ltd [2019] FWCFB 1717, [40]-[46].

[4] R v Commonwealth Conciliation and Arbitration Commission; ex parte Melbourne and Metropolitan Tramways Board [1965] FCA 50, 113 CLR 228 at 243 per Barwick CJ; Rescrete Industries Pty Ltd v AIRC [1998] FCA 930, 86 IR 269.

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