Baptcare Limited

[2022] FWCA 4165

[2022] FWCA 4165

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Baptcare Limited

(AG2022/4605)

Baptcare Community Care, ANMF and HSU Enterprise Agreement 2022

Health and welfare services
COMMISSIONER MIRABELLA	MELBOURNE, 28 NOVEMBER 2022

Application for approval of the Baptcare Community Care, ANMF and HSU Enterprise Agreement 2022.

1. Baptcare Limited (the Employer) has made an application for approval of an enterprise agreement known as the Baptcare Community Care, ANMF and HSU Enterprise Agreement 2022 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

1. 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. The undertakings are taken to be a term of the Agreement.

1. Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of sections 186, 187, 188 and 190, as are relevant to this application for approval, have been met.

1. The Employer did not take all reasonable steps to inform the relevant employees of the time of the vote by the start of the access period for the Agreement. Further, the Employer gave the notice of employee representational rights to employees later than 14 days after the notification time for the Agreement.  Pursuant to s.188(2), I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural errors made in relation to the requirement in sections 173(3) and 180(3). I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the errors. As a result, I am satisfied that the Agreement has been genuinely agreed to within the meaning of s.188(2) of the Act.

1. I observe that certain provisions of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 6.1 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Australian Nursing and Midwifery Federation and the Health Services Union, 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) and based on the declarations provided by the organisations, I note that the Agreement covers these organisations.

1. The Agreement was approved on 28 November 2022 and, in accordance with s.54, will operate from 5 December 2022. The nominal expiry date of the Agreement is 31 January 2024.

COMMISSIONER

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Annexure A