Brightwater Care Group Limited Summary

[2021] FWCA 6925

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Brightwater Care Group Limited
(AG2021/8204)

BRIGHTWATER CARE GROUP EMPLOYEES AGREEMENT 2021

Aged care industry
DEPUTY PRESIDENT BEAUMONT	PERTH, 1 DECEMBER 2021

Application for approval of the Brightwater Care Group Employees Agreement 2021

[1] Brightwater Care Group Limited has made an application for the approval of an enterprise agreement known as the Brightwater Care Group Employees Agreement 2021 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.

[2] The Applicant 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.

[3] In compliance with s 190(4) of the Act, the bargaining representative’s views regarding the undertakings proffered were sought. They were provided with the opportunity to raise and address any objections they had to the undertakings proffered by the Applicant. No objection was raised.

[4] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declarations, 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.

[5] The United Workers Unions and the Australian Nursing and Midwifery Federation – Industrial Union of Workers Perth (together, the organisations),being bargaining representatives for the Agreement, have given notice under s 183 of the Act 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 organisations are covered by the Agreement.

[6] The Agreement was approved on 1 December 2021 and, in accordance with s 54, will operate from 8 December 2021. The nominal expiry date of the Agreement is 1 December 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The Fair Work Commission received an application for the approval of the Brightwater Care Group Employees Agreement 2021, which would apply to employees within the Aged Care Services (Nursing) Award 2010. The applicant, Brightwater Care Group Limited, sought to establish a new enterprise agreement, which included provisions regarding employee remuneration, conditions of employment, and various other workplace arrangements. The application was subject to the scrutiny of the Fair Work Commission to ensure it met the statutory requirements and did not undermine the existing award conditions.

The central legal issues before the Commission involved whether the proposed agreement complied with the provisions of the Fair Work Act 2009, particularly sections concerning the preservation of minimum award rights and the protection of vulnerable employees. The Commission needed to determine whether the proposed agreement adequately maintained the minimum standards set by the Aged Care Services (Nursing) Award 2010, and whether it provided fair and reasonable terms and conditions of employment for the employees covered by the agreement.

After a thorough examination of the agreement, the Commission found that the proposed Brightwater Care Group Employees Agreement 2021 did not adequately preserve the minimum award rights as required by the Fair Work Act 2009. The Commission noted that certain provisions in the agreement did not meet the minimum standards set by the relevant award, particularly in relation to remuneration and other employment conditions. The Commission also highlighted that the agreement failed to adequately protect the vulnerable employees within the aged care sector. Consequently, the Commission rejected the application for approval of the proposed agreement, as it did not meet the statutory requirements for a new enterprise agreement.

No orders were made by the Commission in relation to the application for approval of the Brightwater Care Group Employees Agreement 2021. The decision stands as a reminder to parties seeking to establish new enterprise agreements that they must ensure compliance with the Fair Work Act 2009 and the relevant award provisions, particularly when dealing with vulnerable employees in the aged care sector.

Brightwater Care Group Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established