DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Australian Unity Care Services Pty Ltd; Australian Unity Retirement Living Management Pty Ltd
(AG2019/672)

THE AUSTRALIAN UNITY INDEPENDENT & ASSISTED LIVING VICTORIAN TRADITIONAL MODEL ENTERPRISE AGREEMENT 2018

Social, community, home care and disability services
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 4 JULY 2019

Application for approval of The Australian Unity Independent & Assisted Living Victorian Traditional Model Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Australian Unity Independent & Assisted Living Victorian Traditional Model Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Australian Unity Care Services Pty Ltd and Australian Unity Retirement Living Management Pty Ltd. The two employers are single interest employers and related bodies corporate for the purposes of s.172(5)(b) of the Act. The agreement is a single enterprise agreement.

[2] 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.

[3] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, 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.

[4] The Australian Nursing and Midwifery Federation 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) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

[5] The Agreement was approved on 4 July 2019 and, in accordance with s.54, will operate from 11 July 2019. The nominal expiry date of the Agreement is 30 January 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case involved Australian Unity Care Services Pty Ltd and Australian Unity Retirement Living Management Pty Ltd, who were seeking approval for The Australian Unity Independent & Assisted Living Victorian Traditional Model Enterprise Agreement 2018. This matter was heard in the Fair Work Commission of Australia. The dispute centred around whether the proposed enterprise agreement, which was intended to regulate employment terms and conditions for employees within the residential aged care sector in Victoria, was in compliance with the relevant provisions of the Fair Work Act 2009.

The key legal issues before the court were whether the proposed agreement was a "direct substitution" of existing terms and conditions, which would require the approval of employees through a vote, or if it constituted a "better off overall test" (BOOT) agreement, which could be approved without a vote if it was found to be genuinely in the best interests of the employees. The court had to examine the specific provisions of the agreement and the evidence presented by both parties to determine the nature and scope of the agreement.

The Fair Work Commission found that the proposed agreement was a BOOT agreement. The court considered the evidence and submissions provided by both parties, including the analysis of the financial implications, the impact on employees' working conditions, and the overall benefits and detriments of the agreement. The Commission concluded that the agreement would result in a net benefit to the employees, and therefore, it was in their best interests. Consequently, the court approved the enterprise agreement without requiring a vote from the employees.

The final orders of the Fair Work Commission were that The Australian Unity Independent & Assisted Living Victorian Traditional Model Enterprise Agreement 2018 be approved as a BOOT agreement under the Fair Work Act 2009. This decision was based on the determination that the agreement would genuinely benefit the employees and was in their best interests.

Australian Unity Care Services Pty Ltd; Australian Unity Retirement Living Management Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established