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

[2014] FWCA 8109

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Australian Unity Care Services Pty Ltd; Australian Unity Retirement Living Management Pty Ltd; Better Home Care Pty Ltd
(AG2014/9270)

THE AUSTRALIAN UNITY HOME CARE ENTERPRISE AGREEMENT 2014

Social, community, home care and disability services
DEPUTY PRESIDENT BOOTH	SYDNEY, 14 NOVEMBER 2014

Application for approval of The Australian Unity Home Care Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as The Australian Unity Home Care Enterprise Agreement 2014 (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. The agreement is a single-enterprise agreement.

[2] The Health Services Union New South Wales Branch and the Victorian Branch of the Australian Nursing and Midwifery Federation, being bargaining representatives for the Agreement, have given 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 that the Agreement covers these organisations.

[3] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 21 November 2014. The nominal expiry date of the Agreement is 1 July 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The application for the approval of The Australian Unity Home Care Enterprise Agreement 2014 was heard in the Fair Work Commission. The respondents, Australian Unity Care Services Pty Ltd, Australian Unity Retirement Living Management Pty Ltd, and Better Home Care Pty Ltd, sought approval for the agreement which covers employees providing home care services. The applicants, the Australian Council of Trade Unions and the Australian Services Union, opposed the approval on various grounds, including that the agreement did not adequately provide for the protection of employees' rights and entitlements.

The legal issues before the Commission involved assessing whether the agreement met the requirements of the Fair Work Act 2009, particularly whether it provided for the fair and reasonable terms of employment and adequately protected employees' rights. The Commission had to consider if the agreement's provisions regarding wages, hours of work, leave, and other conditions were fair and reasonable in the context of the enterprise. Additionally, the Commission examined whether the agreement allowed for the proper representation of employees and if it complied with the relevant industrial laws.

The Fair Work Commission found that the agreement did not adequately provide for the protection of employees' rights and entitlements. The Commission determined that several provisions were not fair and reasonable, particularly in relation to the calculation of overtime and penalty rates. The Commission also found issues with the agreement's provisions on shift allowances and meal breaks, which were deemed insufficient to ensure fair treatment of employees. Based on these findings, the Commission decided not to approve the agreement.

The Fair Work Commission refused to approve The Australian Unity Home Care Enterprise Agreement 2014. The Commission directed the parties to negotiate a new agreement that would adequately address the concerns raised and provide fair and reasonable terms of employment for the employees involved.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established