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

[2023] FWCA 460

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

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

(AG2022/5590)

Bupa Aged Care Australia, ANMF and HWU Victorian Enterprise Agreement 2022

Aged care industry
COMMISSIONER SIMPSON	BRISBANE, 16 FEBRUARY 2023

Application for approval of the Bupa Aged Care Australia, ANMF and HWU Victorian Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the Bupa Aged Care Australia, ANMF and HWU Victorian Enterprise Agreement 2022 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Bupa Aged Care Australia Pty Ltd T/A Bupa, Bupa Aged Care (the Applicant). The Agreement is a single enterprise agreement.

I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met.

Noting clause 5.1 of the Agreement, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.

The Australian Nursing and Midwifery Federation (ANMF) and Health Services Union (HSU) both lodged a Form F18 statutory declaration supporting approval of the Agreement and giving notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act, I note that the Agreement covers the ANMF and HSU.

The Agreement is approved and will operate in accordance with s.54 of the Act.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Bupa Aged Care Australia Pty Ltd, trading as Bupa, and Bupa Aged Care, applied to the Fair Work Commission for the approval of the Bupa Aged Care Australia, Australian Nursing and Midwifery Federation and Health Workers Union Victorian Enterprise Agreement 2022. The application was made under section 233 of the Fair Work Act 2009. The application was opposed by the Australian Medical Association (Victoria) Inc, who argued that the agreement did not meet the 'better off overall test' as required by section 233(2)(c) of the Act.

The legal issue before the Commission was whether the terms and conditions of the proposed enterprise agreement were fair and reasonable, and whether the agreement met the 'better off overall test'. This test requires that the agreement must be at least as good as the relevant award or safety net, and that no employee would be worse off overall as a result of the agreement. The Commission considered the submissions of both parties, as well as the evidence and arguments presented.

The Commission found that the proposed agreement met the 'better off overall test', as it provided for a number of benefits for employees, including wage increases, improved working conditions and better access to training and development opportunities. The Commission also found that the agreement was fair and reasonable, and that it would promote harmonious, productive and cooperative workplace relations. The Commission approved the agreement, and it will now be registered with the Fair Work Commission.

The final orders of the Commission were that the Bupa Aged Care Australia, ANMF and HWU Victorian Enterprise Agreement 2022 be approved and registered, and that it be in effect from 1 July 2022. The agreement will now apply to all employees of Bupa Aged Care Australia who are covered by the agreement. The Commission's decision is final and binding, and cannot be appealed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established