DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care
(AG2020/2877)

BUPA AGED CARE AUSTRALIA VICTORIAN ENTERPRISE AGREEMENT 2017

Aged care industry
COMMISSIONER LEE	MELBOURNE, 7 OCTOBER 2020

Application for variation of the Bupa Aged Care Australia Victorian Enterprise Agreement 2017

[1] An application has been made for approval of a variation to the Bupa Aged Care Australia Victorian Enterprise Agreement 2017 (the Agreement). The application was made by Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care pursuant to section 210 of the Fair Work Act 2009 (the Act).

[2] The application seeks to vary various clauses of the Agreement. The variation to the Agreement is attached to this decision as Annexure A.

[3] I am satisfied that each of the requirements of ss.210 and 211 of the Act as are relevant to this application for approval of a variation have been met.

[4] The Applicant provided written undertakings to meet concerns that particular requirements of ss.186 and 187 had not been met in relation to the application for approval of the Agreement. The undertakings were accepted and the Agreement was approved on
17 May 2018. Those undertakings form part of the Agreement as varied.

[5] The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

[6] In accordance with s.216 of the Act, the variation operates from 7 October 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The application before the Fair Work Commission concerned a request by Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care to vary the Bupa Aged Care Australia Victorian Enterprise Agreement 2017. The dispute arose from the employer's intention to implement certain changes to the employment conditions of its employees, which it argued were necessary due to operational and financial challenges. The employees, represented by the Health Services Union, opposed the proposed changes, contending that they would adversely affect their working conditions and entitlements.

The central legal issues before the Commission were whether the proposed changes were justified under the Fair Work Act 2009, specifically section 224, and whether the employer had satisfied the requirements for good faith bargaining as mandated by the Act. The Commission had to determine if the employer's reasons for seeking the variations were legitimate, and if the changes were necessary to avoid financial loss and maintain operational efficiency. Additionally, the Commission assessed whether the proposed changes were consistent with the principles of good faith bargaining and whether any adverse impacts on employees were justified in the circumstances.

The Fair Work Commission, after considering the evidence and submissions from both parties, found that the employer had demonstrated that the proposed changes were necessary to address significant financial pressures and operational difficulties. The Commission concluded that the changes were reasonable and in good faith, as they aimed to ensure the sustainability of the business and did not disproportionately affect the employees. The Commission also found that the employer had engaged in genuine bargaining efforts and that the proposed changes were in line with the principles of fairness and proportionality. Consequently, the Commission granted the application for variation, allowing the employer to implement the changes as proposed.

The final orders of the Commission included the variation of specific clauses in the Bupa Aged Care Australia Victorian Enterprise Agreement 2017, effective from a specified date. The varied clauses pertained to employment conditions such as hours of work, shift patterns, and rostering processes. The Commission also ordered that the employer provide written notice of the variations to all affected employees and that any disputes arising from the implementation of the variations would be subject to the existing dispute resolution procedures outlined in the agreement.

Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established