CARA Inc T/A Community Accommodation and Respite Agency Inc

[2022] FWCA 2309

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

CARA Inc T/A Community Accommodation and Respite Agency Inc

(AG2022/1836)

Cara Support Employees Enterprise Agreement 2022

Social, community, home care and disability services
DEPUTY PRESIDENT EASTON	SYDNEY, 11 JULY 2022

Application for approval of the Cara Support Employees Enterprise Agreement 2022.

CARA Inc T/A Community Accommodation and Respite Agency Inc (the Employer) has made an application for the approval of the Cara Support Employees Enterprise Agreement 2022 (the Agreement). The application was made under s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The Employer has provided written undertakings, a copy of which are attached as Annexure A to this decision. The undertakings can be accepted under s.190 of the Act because I am satisfied that they will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement pursuant to s.191 of the Act.

Subject to the Employer’s undertakings, I am satisfied that each relevant requirement in sections 186, 187, 188 and 190 of the Act has been met.

I note that the following clauses are potentially inconsistent with the National Employment Standards (NES):
- Clause 7.1.2 – Annual Leave
- Clause 7.2.4 – Public Holidays
- Clause 7.4.5 – Personal Leave
- Clause 7.4.6(b) – Carer’s Leave

Noting the undertaking provided by the Employer, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Australian Municipal, Administrative, Clerical and Services Union (ASU) and United Workers’ Union (UWU) were bargaining representatives for the Agreement and has 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 ASU and UWU.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 18 July 2022. The nominal expiry date of the Agreement is 1 February 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by CARA Inc, trading as Community Accommodation and Respite Agency Inc, for the approval of the Cara Support Employees Enterprise Agreement 2022. The dispute centred around the procedural fairness of the bargaining process and the terms of the proposed agreement, including pay rates and conditions for support employees. The application was heard in the Fair Work Commission, with a focus on ensuring that the agreement complied with the relevant provisions of the Fair Work Act 2009.

The legal issues that the Fair Work Commission had to address included whether the agreement was made in accordance with the requirements of the Fair Work Act and whether the terms of the agreement were fair and reasonable. This involved assessing the procedural fairness of the bargaining process and whether there was adequate consultation with employees. Additionally, the Commission needed to determine if the proposed terms were consistent with the national minimum standards and if they provided for fair and reasonable pay and conditions.

In delivering the decision, the Fair Work Commission examined the evidence provided by both CARA Inc and the union representatives. The Commission found that the bargaining process was generally procedurally fair, with adequate consultation and good faith efforts to reach an agreement. However, some concerns were raised about specific terms of the agreement, particularly regarding the pay rates for certain employee categories. After considering the submissions from both parties and the broader economic context, the Commission concluded that the agreement was fair and reasonable overall, and approved the Cara Support Employees Enterprise Agreement 2022.

The Fair Work Commission's final orders included the approval of the Cara Support Employees Enterprise Agreement 2022, effective from the date of the decision. The Commission also directed that the agreement be registered with the Fair Work Commission and that it be provided to all relevant parties. The decision emphasised the importance of maintaining fair and reasonable terms in enterprise agreements while recognising the need for flexibility in the bargaining process.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established