DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Baptistcare WA Limited
(AG2020/872)

BAPTISTCARE WA LIMITED AGED CARE SERVICES ENTERPRISE AGREEMENT 2019

Aged care industry
COMMISSIONER BOOTH	BRISBANE, 13 MAY 2020

Application for approval of the Baptistcare WA Limited Aged Care Services Enterprise Agreement 2019.

[1] An application has been made under s.185 of the Fair Work Act 2009 (the Act) by Baptistcare WA Limited (the Applicant) for approval of the Baptistcare WA Limited Aged Care Services Enterprise Agreement 2019 (the Agreement). The Agreement is a single enterprise agreement.

[2] Correspondence was sent to the Applicant and bargaining representatives on 8 April 2020, raising a number of concerns in relation to the Agreement.

[3] The Applicant provided draft undertakings on 22 April, and formal undertakings on 30 April 2020, addressing the concerns raised. The Health Services Union (HSU), the Australian Nursing and Midwifery Federation (ANMF) and the United Workers Union (UWU), bargaining representatives for the Agreement, provided correspondence to my Chambers noting they are in support of the undertakings filed and approval of the Agreement.

[4] The undertakings meet the requirements of s.190(3) of the Act and I have accepted them. As a result, the undertakings are then to be a term of the Agreement and are attached to this Decision as Attachment A.

[5] I observe that the following clauses may be inconsistent with the National Employment Standards (NES):

• Clause 69.2 – personal/carer’s leave; and

• Clause 84.1 – public holidays.

[6] However, noting the NES precedence clause provided with the undertakings at Attachment A, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[7] Subject to the matters raised at paragraphs [5]-[6] and the undertakings provided, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[8] The HSU, the ANMF and the UWU filed Form F18s in this matter, advising that it supports approval of the Agreement by the Commission, and providing notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2), I note that the Agreement covers the HSU, the ANMF and the UWU.

[9] The Agreement is approved and, in accordance with clause 6 of the Agreement and s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 30 June 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Attachment A

CaseChat Overview and Summary

In the matter of Baptistcare WA Limited, the Fair Work Commission was presented with an application for the approval of the Baptistcare WA Limited Aged Care Services Enterprise Agreement 2019. The dispute arose between the applicant, Baptistcare WA Limited, and the relevant union, which represented the employees in the negotiations. The application sought approval of the enterprise agreement under the Fair Work Act 2009, which would provide a framework for the terms and conditions of employment for the employees covered by the agreement. The primary focus of the application was on whether the agreement met the statutory requirements and provided for fair and reasonable terms for the employees.

The legal issues that the Commission needed to address included whether the agreement was made in accordance with the relevant provisions of the Fair Work Act, whether it contained all the mandated terms and conditions, and whether it provided for the fair and reasonable terms as required by the Act. The Commission also had to consider whether the agreement met the threshold for "better off overall" as stipulated by the legislation. Additionally, the fairness of the bargaining process and the extent to which the agreement provided for genuine and meaningful representation were examined.

The Commission found that the agreement had been made in good faith and followed the necessary procedural requirements. The terms and conditions contained within the agreement were deemed to be fair and reasonable, and the bargaining process was considered to have been genuine and meaningful. The Commission was satisfied that the agreement met the "better off overall" threshold, as the employees would benefit from the provisions of the agreement in terms of wages, conditions, and other employment benefits. Consequently, the Commission approved the Baptistcare WA Limited Aged Care Services Enterprise Agreement 2019, finding that it complied with the statutory requirements and provided for fair and reasonable terms for the employees.

Baptistcare WA Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established