Advocare Inc.

[2019] FWCA 4212

[2019] FWCA 4212

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Advocare Inc.
(AG2019/184)

ADVOCARE ENTERPRISE AGREEMENT 2019

Social, community, home care and disability services
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 20 JUNE 2019

Application for approval of the Advocare Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Advocare Enterprise Agreement 2019 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Advocare Inc. (Employer). 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.

[3] Subject to the undertakings, 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] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES). However, noting Clause 1.5.1 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES:

•  Clause 3.4.3.1 of the Agreement, which states that the severance pay provisions in the Agreement shall not apply if the employer obtains acceptable alternative employment for an employee.

•  Clause 7.7.1 of the Agreement, which does not express the entitlement to compassionate leave as “per occasion.”

[6] The Australian Municipal, Administrative, Clerical and Services Union, 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.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 27 June 2019. The nominal expiry date of the Agreement is 30 June 2022.

DEPUTY PRESIDENT

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Annexure A