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

[2019] FWCA 3330

[2019] FWCA 3330

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Bupa Aged Care Australia Pty Ltd T/A Bupa; Bupa Aged Care
(AG2019/618)

BUPA AGED CARE AUSTRALIA PTY LIMITED SOUTH AUSTRALIA ENTERPRISE AGREEMENT 2018

Health and welfare services
COMMISSIONER LEE	MELBOURNE, 14 MAY 2019

Application for approval of the Bupa Aged Care Australia Pty Limited South Australia Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Bupa Aged Care Australia Pty Limited South Australia 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 Bupa Aged Care Australia Pty Ltd T/A Bupa; Bupa Aged Care. The Agreement is a single enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[3] Clause 32 of the Agreement provides that e-learning modules will normally be completed during working hours, however modules can be completed outside of working hours. It was noted that employees who receive rates of pay only marginally above the Award rates may not be better off overall if required to work outside their ordinary working hours in the absence of overtime penalties. Accordingly, I raised this was raised with the Applicant, to which I received the following submissions:

“It is Bupa’s interpretation and intended application of clause 32 of the Agreement that any work performed outside of the employee’s ordinary work hours under this clause would attract the appropriate overtime rates under clause 29.1 of the Agreement, given this is work which would not be performed within ordinary hours. It is therefore unclear how the operation of this clause could result in any employees not being better off overall”

As a result of the submissions provided by the Applicant, I am satisfied that employees will receive the appropriate overtime rates when conducting e-learning outside ordinary hours of work and therefore will be better off overall.

[4] The Australian Nursing and Midwifery Federation and United Voice 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.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 21 May 2019. The nominal expiry date of the Agreement is 30 June 2021.

COMMISSIONER

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