Boroondarra Aged Services Society T/A BASScare

[2020] FWCA 5571

[2020] FWCA 5571

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Boroondarra Aged Services Society T/A BASScare
(AG2020/2774)

BASS CARE AGED CARE ENTERPRISE AGREEMENT 2018

Health and welfare services
DEPUTY PRESIDENT MASSON	MELBOURNE, 20 OCTOBER 2020

Application for approval of the BASS Care Aged Care Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the BASS Care Aged Care 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 Boroondarra Aged Services Society T/A BASScare. 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. The undertakings are taken to be a term of the agreement.

[3] Subject to the undertakings referred to above, 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] I note that Clauses 43.1(b)(ii), 44.5(a), 45.6, 32.5 are inconsistent with the National Employment Standards. Given the National Employment Standards precedence clause at clause 5.1 of the agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.

[5] The Notice of Representational Rights (Notice) provided with the Application referenced the incorrect section of the Act and appear to provide content not otherwise prescribed for under the Act. I am satisfied that in all of the circumstances and having regard to the Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others¹[i], this constitutes a minor procedural or technical error for the purposes of s 188(2)(a). Further, I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error.

[6] The Agreement lodged contained an error at Clause 44.4. On 8 October 2020, the Applicant filed an amended page to the Agreement pursuant to s.586 of the Act. I am satisfied that the correction should be made and that it is appropriate to do so pursuant to s.586 of the Act.

[7] 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) I note that the Agreement covers the organisations.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 27 October 2020. The nominal expiry date of the Agreement is 31 October 2021.

DEPUTY PRESIDENT

Annexure A

1 [2019] FWCFB 318

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