Aged Care & Housing Group Inc T/A Ach Group

[2024] FWCA 2381

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Aged Care & Housing Group Inc T/A Ach Group

(AG2024/2149)

ACH GROUP AND HSU PROFESSIONAL THERAPISTS ENTERPRISE AGREEMENT 2023

Aged care industry
COMMISSIONER PLATT	ADELAIDE, 27 JUNE 2024

Application for approval of the ACH Group & HSU Professional Therapist Employees Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the ACH Group & HSU Professional Therapist Employees Enterprise Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Aged Care & Housing Group Inc T/A Ach Group (the Applicant). The agreement is a single enterprise agreement.

The matter was allocated to my Chambers on 20 June 2024.

On 21 June 2024, I provided the parties with a table of issues to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

In respect of the Notice of Employee Representational Rights (NERR) deficiency it appears a pre-reform version of the NERR was provided to employees. I am satisfied taking into consideration s.188(5) of the Act, that the procedural or technical error is minor and that the employees were not likely to have been disadvantaged, and accordingly, that there has been a genuine agreement.

There is one National Employment Standard (NES) issue that requires comment:

· Clause 35.3.4 requires the evidence for taking personal leave must satisfy the employer. This is inconsistent with s 107(3) of the Act, which requires that the evidence must satisfy a reasonable person.

Clause 7.3 of the Agreement acts as an effective NES precedence clause. As a result, the above clause will not apply to the extent it is inconsistent with the NES.

The Applicant has submitted an undertaking in the required form dated 21 June 2024. The undertaking deals with the following topics:

· For the purposes of Clause 15, an employee will be entitled to be represented by a person (including their union) of their choice at any stage of the dispute resolution procedure.

· Despite Clause 22.1, the provision of shift penalties has been adjusted to ensure the BOOT is met.

A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives did not express any view on the undertaking.

The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

The Health 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) of the Act I note that the Agreement covers this organisation.

I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 3 July 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The matter before the Fair Work Commission concerned an application for the approval of the ACH Group & HSU Professional Therapist Employees Enterprise Agreement 2023. The Applicant, Aged Care & Housing Group Inc trading as ACH Group, sought the Commission's approval of the proposed enterprise agreement, which aimed to regulate the terms and conditions of employment for professional therapists employed by the Respondent. The Health Services Union (HSU) represented the employees in the negotiation process.

The central legal issues that the Commission needed to resolve included whether the proposed agreement complied with the relevant provisions of the Fair Work Act 2009 and whether it met the requirements for a simple or low-risk agreement. Additionally, the Commission had to ensure that the agreement was made in good faith and that the process leading to its formation was procedurally fair.

In determining the application, the Commission examined the process by which the agreement was negotiated, the nature of the proposed terms and conditions, and whether they complied with the relevant legislative provisions. The Commission considered the evidence presented by both parties and assessed whether the agreement met the criteria for a simple or low-risk agreement. After careful consideration, the Commission was satisfied that the application met the necessary requirements for approval, finding that the agreement was made in good faith and the negotiation process was procedurally fair. The proposed agreement was approved, effective from 1 April 2023.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established