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

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Advocare Inc. involved an application by the employer for approval of the Advocare Enterprise Agreement 2019. The Fair Work Commission was tasked with determining whether the agreement was in the interests of the employees and met the necessary requirements under the Fair Work Act 2009. The application was brought following a series of negotiations between the employer and the employees' representatives, which had culminated in the proposed enterprise agreement.

The primary legal issue before the Commission was whether the terms of the proposed agreement were fair and balanced, taking into account the various factors outlined in section 230 of the Fair Work Act. This included an assessment of whether the agreement provided for equitable terms and conditions, adequate protection of employees' rights, and whether it aligned with broader economic and employment principles. The Commission also needed to consider the views of the employees, as expressed through a vote, and whether those views were fairly represented in the agreement.

The Fair Work Commission concluded that the Advocare Enterprise Agreement 2019 was fair and balanced, and in the interests of the employees. The Commission noted the comprehensive negotiation process that had occurred and the fact that the agreement had received majority support from the employees. The Commission also found that the agreement adequately addressed key employment terms, including wages, hours of work, and other conditions, while also providing appropriate protections for employees. The Commission emphasised the importance of the agreement in maintaining stability and productivity within the workplace. Consequently, the application for approval was granted, and the agreement was formally approved.

The Fair Work Commission approved the Advocare Enterprise Agreement 2019, recognising it as fair and balanced, and in the interests of the employees. This decision underscored the importance of the negotiation process and the expression of employees' views in the formation of such agreements. The approved agreement will now serve as the basis for employment conditions within the enterprise, effective from the date of approval.

Advocare Inc.

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established