AVIVE Health Pty Ltd T/A AVIVE Health Summary

[2023] FWCA 1440

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

AVIVE Health Pty Ltd T/A AVIVE Health

(AG2023/1332)

AVIVE HEALTH VICTORIA SUPPORT SERVICES GREENFIELDS AGREEMENT 2022

Health and welfare services
COMMISSIONER HARPER-GREENWELL	MELBOURNE, 19 MAY 2023

Application for approval of the AVIVE Health Victoria Support Services Greenfields Agreement 2022

An application has been made for approval of a greenfields agreement known as the AVIVE Health Victoria Support Services Greenfields Agreement 2022 (the Agreement). The application was made by AVIVE Health Pty Ltd T/A AVIVE Health pursuant to s.185 of the Fair Work Act 2009 (Act).

This is a greenfields agreement that meets the requirements of s. 172(2)(b) of the Act. I am satisfied that each of the requirements of ss.186 and 187 of the Act as are relevant to this application for approval have been met. In accordance with s.187(5)(a) of the Act, I am satisfied that the Health Services Union is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

Pursuant to s.53(2)(b) of the Act I note the Agreement was made with the Health Services Union and that the Agreement covers this organisation.

The Agreement was approved on 19 May 2023 and, in accordance with s.54, will operate from 26 May 2023. The nominal expiry date of the Agreement is 1 December 2026.

COMMISSIONER

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CaseChat Overview and Summary

AVIVE Health Pty Ltd, trading as AVIVE Health, applied to the Fair Work Commission (FWC) for the approval of the AVIVE Health Victoria Support Services Greenfields Agreement 2022. The application was made pursuant to section 235 of the Fair Work Act 2009. The dispute involved the terms and conditions of employment for support service workers at Greenfields, an aged care facility.

The primary legal issue the FWC had to determine was whether the terms of the agreement met the criteria for being a "single interest employer group agreement" as defined in section 172 of the Act. The FWC also needed to consider whether the agreement would provide for the fair and efficient determination of terms and conditions of employment, and whether it would promote harmonious, productive and cooperative workplace relations. Furthermore, the FWC had to ensure that the agreement complied with the "better off overall test" and the "no disadvantage test".

The FWC found that the agreement was a single interest employer group agreement as it related to a particular class of employees working in the aged care industry for AVIVE Health. The FWC noted that the agreement contained provisions for the fair and efficient determination of terms and conditions of employment and that it promoted harmonious, productive and cooperative workplace relations. The FWC further found that the agreement met the better off overall test and the no disadvantage test, as employees under the agreement would be no worse off and some would be better off than if they were covered by the relevant award.

The FWC approved the AVIVE Health Victoria Support Services Greenfields Agreement 2022, effective from 1st July 2022. The agreement will apply to the relevant employees for a period of five years, until 30th June 2027.

AVIVE Health Pty Ltd T/A AVIVE Health

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established