Assisi Aged Care

[2020] FWCA 994

[2020] FWCA 994

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Assisi Aged Care
(AG2019/4779)

ASSISI AGED CARE ENTERPRISE AGREEMENT 2019

Aged care industry
DEPUTY PRESIDENT MANSINI	MELBOURNE, 24 FEBRUARY 2020

Application for approval of the Assisi Aged Care Enterprise Agreement 2019.

[1] Assisi Aged Care has applied for approval of a single enterprise agreement known as the Assisi Aged Care Enterprise Agreement 2019 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] Since the application was made, the Commission raised concerns about whether: the pre-approval requirements were met, the Agreement contravenes s.55 of the Act, contains the mandatory terms and passes the better off overall test. Further information was provided in relation to these concerns.

[3] The Applicant applied to correct a typographical error in the Agreement by filing an amended Agreement page. The bargaining representatives supported this amendment. In the circumstances, I am satisfied that this amendment should be allowed and that it is appropriate to do so pursuant to s.586 of the Act.

[4] The Notice of Employee Representational Rights (Notice) issued at the commencement of bargaining was not strictly compliant with the requirements of s.174 because it included a typographical error. The Notice was otherwise compliant in all respects. Having regard to the content of the Notice that was issued, the decision in Huntsman Chemical Company Australia Pty Limited t/a RMAX Rigid Cellular Plastics and Others 1and in all of the circumstances, I am satisfied that:

a) this constitutes a minor procedural or technical error for the purposes of s.188(2)(a); and

b) the employees to be covered by the Agreement were not likely to have been disadvantaged by the error.

[5] Accordingly, I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188(2) of the Act.

[6] Noting clause 5.2 of the Agreement, I am also satisfied that the more beneficial entitlements of the National Employment Standards in the Act (NES) will prevail where there is an inconsistency between the Agreement and the NES.

[7] Written undertakings were given in accordance with s.190 of the Act and are attached at Annexure A (Undertakings). The bargaining representatives supported the 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. Pursuant to s.201(3) of the Act, the Undertakings are taken to be terms of the Agreement.

[8] The flexibility term prescribed by the Fair Work Regulations 2009 (Cth) (the Regulations) is taken to be a term of the Agreement, pursuant to s.202(4) of the Act.

[9] On the basis of the material contained in the application, amended Agreement page, further information provided on request of the Commission and 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.

[10] The Australian Nursing and Midwifery Federation (Victorian Branch) and the Health Services Union Victorian No.1 Branch being, bargaining representatives for the Agreement, have respectively given notice under s.183 of the Act. In accordance with s.201(2) I note that the Agreement covers these organisations.

[11] The Agreement was approved on 24 February 2020 and, in accordance with s.54, will operate from 2 March 2020. The nominal expiry date of the Agreement is 1 November 2021.

DEPUTY PRESIDENT

Annexure A

 1   [2019] FWCFB 318.

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