Burleigh Waters Physio and Pilates Pty Ltd ATF JP Physiotherapy Trust T/A Back in Motion Burleigh Waters

[2020] FWCA 4984

[2020] FWCA 4984

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Burleigh Waters Physio and Pilates Pty Ltd ATF JP Physiotherapy Trust T/A Back in Motion Burleigh Waters
(AG2020/2412)

BACK IN MOTION BURLEIGH WATERS ENTERPRISE AGREEMENT 2020

Health and welfare services
DEPUTY PRESIDENT LAKE	BRISBANE, 26 OCTOBER 2020

Application for approval of the Back in Motion Burleigh Waters Enterprise Agreement 2020.

[1] An application has been made for the approval of an enterprise agreement known as the Back in Motion Burleigh Waters Enterprise Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Burleigh Waters Physio and Pilates Pty Ltd ATF JP Physiotherapy Trust T/A Back in Motion Burleigh Waters (the Applicant).

[2] The Agreement is a single enterprise agreement.

[3] The matter was allocated to my Chambers and correspondence was sent to the Applicant raising certain concerns regarding the Agreement. The Applicant provided undertakings and responses to the correspondence on 28 August 2020.

[4]  I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

● Clause 32.6 – Withholding money due to an employee;
● Clause 16.1(b) – Annual leave.

[5] However, noting the NES precedence clause at clause 24 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.

[6] I further note that the Agreement contains several references to the Health Professionals and Support Services Award 2010. I raised this issue with the Applicant who confirmed the correct reference is to the Health Professionals and Support Services Award 2020.

[7] I exercise my discretion under s.586 of the Act to correct these referencing errors. Where the Agreement refers to the Health Professionals and Support Services Award 2010, it should instead be read as referring to the Health Professionals and Support Services Award 2020.

[8] 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. Pursuant to s. 190 of the Act, I accept the undertakings. In accordance with s.201(3) of the Act, I note that the undertakings are taken to be a term of the Agreement. Copies of the undertakings are attached to the Agreement.

[9] I have taken into consideration the material filed in the Commission. Subject to the matters referred to above, I am satisfied that each requirements of ss. 186, 187, 188 and 190 as are relevant for this application for approval have been met.

[10] The Agreement is approved and, in accordance with s.54 of the Act, will operate form 2 November 2020. The nominal expiry date of the Agreement is 26 October 2024.

DEPUTY PRESIDENT

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