Amaroo Care Services Inc T/A Amaroo Village

[2023] FWCA 1510

[2023] FWCA 1510

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Amaroo Care Services Inc T/A Amaroo Village

(AG2023/1295)

AMAROO CARE SERVICES INC MAINTENANCE PERSONNEL ENTERPRISE AGREEMENT 2022

Aged care industry
DEPUTY PRESIDENT O’NEILL	MELBOURNE, 26 MAY 2023

Application for approval of the Amaroo Care Services Inc Maintenance Personnel Enterprise Agreement 2022

1. An application has been made for approval of an enterprise agreement known as the Amaroo Care Services Inc Maintenance Personnel Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Amaroo Care Services Inc T/A Amaroo Village. The Agreement is a single enterprise agreement.

1. 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.

1. 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.

1. The Notice of Employee Representational Rights (NERR) provided to employees includes the Employer’s letterhead and includes staff email addresses, which is inconsistent with the requirements of s.174(1A) of the Act.

1. However, in all the circumstances, I am satisfied that the Agreement would have been genuinely agreed to but for the minor technical and procedural errors regarding the content of the NERR, and that the employees covered by the Agreement were not likely to have been disadvantaged by these errors. Accordingly, I exercise the discretion conferred by s.188(2) of the Act.

1. 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.

1. I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

·   Compassionate Leave - Clause 27; and

·   Contract of Employment - Clause 9.8.

However, noting clause 3.4 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.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 2 June 2023. The nominal expiry date of the Agreement is 30 June 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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Annexure A