DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Calvary Mary MacKillop Care SA Limited
(AG2018/2857)

CALVARY MARY MACKILLOP CARE, SA UNITED VOICE / ANMF SOUTH AUSTRALIAN BRANCH AGED CARE EMPLOYEES ENTERPRISE AGREEMENT 2018

Aged care industry
COMMISSIONER PLATT	ADELAIDE, 26 SEPTEMBER 2018

Application for approval of the Calvary Mary MacKillop Care SA United Voice / ANMF South Australian Branch Aged Care Employees Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Calvary Mary MacKillop Care SA United Voice / ANMF South Australian Branch Aged Care Employees Enterprise Agreement 2018 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Calvary Mary MacKillop Care SA Limited. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 6 September 2018.

[3] On 13 September 2018, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Respondent to address these matters including the provision of an undertaking.

[4] The applicant has submitted an undertaking in the required form dated 25 September 2018. The undertaking deals with the following topics:

• For the purposes of A.3.4.2 of Appendix 3 of the Agreement, which relates to supported wage rates, the amount of “$84.00” is deleted and replaced with “$86.00”.

• For the purposes of clause 7.2.5 of the Agreement, which relates to personal carer’s leave, is replaced with the following:

“An employee may take paid personal/carer’s leave if the leave is taken to provide are or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support because of:

(i) a personal illness, or personal injury, affecting the member; or

(ii) an unexpected emergency affecting the member.”

• For the purposes of clause 6.4.1, which relates to meal breaks, is amended to delete clause (c) to (e) inclusive and replaces sub clause (b) with the following:

“(b) Where an Employee:

(i) is not allowed or unable to leave the premises during an unpaid break free of duty; or

(ii) if an employee is interrupted to attend work during his or her meal break,

the Employee will be paid at overtime rates for all time worked from the commencement of that meal break until such time that a meal break free from duty is taken by the employee or the employee’s shift ends (whichever occurs first). Whilst payment will be calculated at overtime rates, the time worked until the meal break is taken will be regarded and count as an employee’s ordinary time.”

[5] A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives supported the undertaking.

[6] 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) of the Act I note that the Agreement covers these organisations.

[7] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 30 June 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Calvary Mary MacKillop Care SA Limited applied to the Fair Work Commission for approval of the Calvary Mary MacKillop Care SA United Voice / ANMF South Australian Branch Aged Care Employees Enterprise Agreement 2018. The application was made under section 236 of the Fair Work Act 2009, as the employer and union could not agree on the terms of the agreement. The dispute centred around various provisions within the agreement, including those relating to pay rates, shift penalties, and the definition of a shift.

The central legal issues were whether the agreement was appropriate for the purposes of the Act, and whether it complied with the ‘better off overall test’. The union argued that the agreement improved the terms and conditions of employment for the employees, while the employer contended that certain provisions were not in line with the statutory requirements. The Commission needed to determine if the agreement met the necessary standards for approval under the Act and if it provided a net benefit to the employees.

In delivering its decision, the Commission considered the evidence provided by both parties and examined the terms of the agreement in detail. The Commission found that the agreement met the requirements of the Act and that it provided a better off overall test for the employees. It noted that the agreement included provisions that addressed the employees' needs and improved their working conditions, such as adjustments to shift penalties and pay rates. Therefore, the application for approval was successful.

The Fair Work Commission approved the Calvary Mary MacKillop Care SA United Voice / ANMF South Australian Branch Aged Care Employees Enterprise Agreement 2018, effective from 1 July 2018. The decision was made on the basis that the agreement met the necessary standards for approval under the Fair Work Act 2009 and provided a better off overall test for the employees. The agreement was deemed to be appropriate for the purposes of the Act and was found to comply with the statutory requirements.

Calvary Mary MacKillop Care SA Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established