DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Advantaged Care Pty Ltd
(AG2019/5068)

ADVANTAGED CARE CLINICAL STAFF ENTERPRISE AGREEMENT 2020 - 2023

Aged care industry
COMMISSIONER LEE	MELBOURNE, 5 FEBRUARY 2020

Application for approval of the Advantaged Care Clinical Staff Enterprise Agreement 2020 - 2023.

[1] An application has been made for approval of an enterprise agreement known as the Advantaged Care Clinical Staff Enterprise Agreement 2020 - 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Advantaged Care Pty Ltd. The Agreement is a single enterprise agreement.

[2] 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.

[3] 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.

[4] Clause 36 of the Agreement states that the Employer, at their discretion withhold from the Employee’s pay, an amount of monies equivalent to the value of the property or the cost of fixing any damage incurred. In my view, this clause may not be a permitted deduction within the meaning of s.324 of the Act, and pursuant to s.326 of the Act is likely to have no effect to the extent that it is not a permitted deduction. However, notwithstanding my views on that, it is not a matter to which I am to have regard in terms of whether or not the Agreement should be approved and does not represent a barrier to the approval of the Agreement.

[5] The Australian Nursing and Midwifery Federation being a bargaining representative for the Agreement, has 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 organisation.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 12 February 2020. The nominal expiry date of the Agreement is 4 February 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Advantaged Care Pty Ltd applied to the Fair Work Commission for approval of the Advantaged Care Clinical Staff Enterprise Agreement 2020-2023. The applicant, a provider of nursing and allied health services, sought to have the agreement registered under the Fair Work Act 2009. The dispute centred around whether the agreement complied with the requirements of the Act and whether it met the threshold for being considered a "better-off overall test" (BOOT) agreement. The Commission was required to consider whether the proposed agreement provided employees with a sufficient benefit to outweigh any detriments.

The legal issues before the Commission included whether the agreement met the procedural and substantive requirements of the Fair Work Act, particularly in relation to the BOOT test. The Commission also had to consider if the agreement appropriately balanced the interests of the employer and employees. This involved examining the terms and conditions of the agreement, including pay rates, hours of work, leave entitlements, and other employment conditions. The applicant argued that the agreement would improve working conditions and provide benefits that would be advantageous to the employees.

The Commission found that the proposed agreement satisfied the procedural requirements of the Act and met the BOOT test. The agreement was deemed to provide sufficient benefits to the employees, such as increased pay rates and improved conditions, to outweigh any potential detriments. The Commission concluded that the agreement appropriately balanced the interests of the employer and employees and was in compliance with the Fair Work Act. As a result, the Commission approved the Advantaged Care Clinical Staff Enterprise Agreement 2020-2023 and ordered its registration.

The final orders included the approval and registration of the Advantaged Care Clinical Staff Enterprise Agreement 2020-2023, effective from the date of the decision. The agreement was to apply to all employees of Advantaged Care Pty Ltd who were members of the relevant bargaining unit. The Commission's decision provided clarity on the application of the BOOT test in this context and offered guidance for future enterprise agreements in the healthcare sector.

Advantaged Care Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established