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.

Printed by authority of the Commonwealth Government Printer

The proceedings before the Fair Work Commission involved an application for the approval of the Assisi Aged Care Enterprise Agreement 2019. This agreement was proposed to govern the employment terms and conditions of employees working within Assisi Aged Care facilities in Victoria. The application was contested by various parties, including the employer, represented by Assisi Aged Care, and employee representatives who raised concerns about certain provisions within the proposed agreement. The Commission was tasked with determining whether the agreement met the legal requirements for approval under the Fair Work Act 2009.

The legal issues before the Commission centred on whether the proposed agreement contained all the mandated provisions as per section 234 of the Fair Work Act. Specifically, the Commission needed to assess whether the agreement provided for minimum terms and conditions, including wages, leave entitlements, and other employment standards. Additionally, the Commission considered whether the agreement had been made in good faith and whether it adhered to procedural fairness, ensuring that employee representatives had adequate opportunity to participate in the negotiation process. The Commission also had to ensure that the agreement did not disadvantage employees in terms of their pay or conditions compared to those set by the relevant modern award.

In delivering its decision, the Commission first examined the procedural fairness of the agreement. It was determined that the negotiation process was conducted in good faith, with employee representatives having a meaningful opportunity to contribute to the discussions. The Commission then assessed the substantive provisions of the agreement against the mandated minimum terms and conditions. It found that the proposed agreement provided for wages and conditions that were at least equal to, and in some cases better than, those set out in the applicable modern award. The Commission was satisfied that the agreement met all the legislative requirements for approval. Consequently, the Commission approved the Assisi Aged Care Enterprise Agreement 2019, acknowledging the agreement's compliance with the Fair Work Act.

Assisi Aged Care

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established