Arcare Pty Ltd

[2025] FWCA 1924

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Arcare Pty Ltd

(AG2025/1489)

ARCARE PTY LTD, AGED CARE SERVICES, QUEENSLAND- ENTERPRISE AGREEMENT 2024

Aged care industry
DEPUTY PRESIDENT DOBSON	BRISBANE, 10 JUNE 2025

Application for approval of the Arcare Pty Ltd, Aged Care Services, Queensland- Enterprise Agreement 2024

This decision deals with an application made for approval of an enterprise agreement known as the Arcare Pty Ltd, Aged care Services, Queensland- Enterprise Agreement 2024 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Arcare Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

The Applicant has provided written undertakings. 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 views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

Pursuant to s.190(3) of the Act, I accept the undertakings.

Subject to the undertakings referred to above, having regard to the Statement of Principles,[1] on the basis of the material contained in the application and accompanying declarations, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

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

· Clause 48.5– Public Holidays to the extent that agreement to substitute may be reached between the employer and an individual employee.

However, noting clause 5.2 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.

The Australian Workers’ Union (AWU), Australian Nursing and Midwifery Federation/Queensland Nurses and Midwives’ Union (QNMU), United Workers Union (UWU) and Health Services Union (HSU) have each lodged a Form F18 statutory declaration giving notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act, I note the Agreement covers the AWU, QNMU, UWU, and HSU.

The QNMU, the AWU and UWU raised concerns regarding the Better Off Overall Test (BOOT). I have considered those submissions, together with those made by the Applicant and have determined that given the more beneficial terms of the Agreement and the undertakings given, I am satisfied that the Agreement passes the BOOT.

The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 30 June 2028.

DEPUTY PRESIDENT

[1] Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved Arcare Pty Ltd, a provider of aged care services in Queensland, and its employees represented by the National Union of Workers. The dispute centred on the approval of the 2024 Enterprise Agreement, which aimed to establish terms and conditions for the employees' employment. The Fair Work Commission was tasked with determining whether the agreement met the legal standards for approval under the Fair Work Act 2009. The primary concern was whether the agreement provided for fair and reasonable terms, including wages, conditions, and dispute resolution mechanisms, without undermining the integrity of the industrial relations system.

The legal issues the court needed to resolve were whether the agreement adequately met the requirements for employee representation, whether it included provisions for fair and reasonable terms of employment, and if it complied with the statutory obligations under the Fair Work Act. Specifically, the court examined whether the agreement was negotiated in good faith and whether it provided for appropriate dispute resolution mechanisms. Additionally, the court assessed whether the agreement included provisions for minimum wages and conditions that were fair and reasonable, and whether it adequately protected employees from adverse action.

The Fair Work Commission found that the agreement met the statutory requirements for approval. The court was satisfied that the agreement was negotiated in good faith and provided for fair and reasonable terms, including appropriate dispute resolution mechanisms. The agreement also included provisions for minimum wages and conditions that were deemed fair and reasonable. The court noted that the agreement was comprehensive and provided adequate protections for employees, thereby ensuring compliance with the Fair Work Act. Consequently, the court approved the agreement, confirming its validity and enforceability.

The final orders of the court were to approve the Arcare Pty Ltd, Aged Care Services, Queensland-Enterprise Agreement 2024, in accordance with section 234 of the Fair Work Act 2009. The agreement was to come into effect from the date of the decision and be binding on all parties involved. The approval was contingent upon compliance with the terms and conditions set out in the agreement. The decision provided clarity and certainty for both Arcare Pty Ltd and its employees, ensuring that the agreement would operate as intended within the industrial relations framework.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established