DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Bupa Aged Care Australia Pty Ltd T/A Bupa; Bupa Aged Care
(AG2018/4870)

BUPA AGED CARE AUSTRALIA, NSWNMA, ANMF (NSW BRANCH) AND HSU NSW BRANCH, NEW SOUTH WALES ENTERPRISE AGREEMENT 2018

Aged care industry
DEPUTY PRESIDENT MASSON	MELBOURNE, 8 JANUARY 2019

Application for approval of the Bupa Aged Care Australia, NSWNMA, ANMF (NSW Branch) and HSU NSW Branch, New South Wales Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Bupa Aged Care Australia, NSWNMA, ANMF (NSW Branch) and HSU NSW Branch, New South Wales 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 observe the following provisions are likely to be inconsistent with the National Employment Standards (NES):

● Clause 10.4 – Casual employment;

● Clause 11.2 – Notice of termination by an employee.

However, noting clause 43 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[3] 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.

[4] 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.

[5] The Australian Nursing and Midwifery Federation and the Health Services Union of Australia 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.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 15 January 2019. The nominal expiry date of the Agreement is 31 December 2020.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case involved an application for the approval of an enterprise agreement between Bupa Aged Care Australia and several unions. The unions involved were the NSW Nurses and Midwives' Association, the Australian Nursing and Midwifery Federation (NSW Branch), and the Health Services Union NSW Branch. The agreement was subject to approval by the Fair Work Commission under the Fair Work Act 2009. The dispute centred on whether the enterprise agreement met the necessary criteria for approval, including its alignment with the "better off overall test" and whether it contained provisions that were not in the best interests of the employees.

The primary legal issue before the court was whether the enterprise agreement, as proposed, satisfied all the statutory requirements for approval under the Fair Work Act. This included ensuring that the agreement provided for a fair and efficient workplace, met the "better off overall test", and did not contain any unfair provisions that might adversely affect the employees. The court had to carefully consider the specific terms of the agreement, the submissions from the parties, and the evidence provided to determine whether the agreement fulfilled these criteria.

The court examined the evidence and submissions provided by the parties and concluded that the enterprise agreement met the statutory requirements for approval. The agreement provided for a fair and efficient workplace and satisfied the "better off overall test". The court found that the agreement contained provisions that were in the best interests of the employees and did not contain any unfair provisions. The court approved the enterprise agreement, highlighting its overall benefit to the employees and its compliance with the statutory requirements.

The court approved the enterprise agreement, confirming its compliance with the statutory requirements under the Fair Work Act. The approval ensures that the terms of the agreement will govern the employment conditions of the employees covered by the agreement. The decision provides certainty and stability for both the employees and the employer, and sets the terms and conditions of employment for the specified period.

Bupa Aged Care Australia Pty Ltd T/A Bupa; 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