CareFlight Limited T/A CareFlight

[2021] FWCA 440

[2021] FWCA 440

FAIR WORK COMMISSION

DECISION

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

CareFlight Limited T/A CareFlight
(AG2020/3863)

LOGISTICS COORDINATION UNIT (NT) ENTERPRISE AGREEMENT 2020 - 2023

Ambulance and patient transport
DEPUTY PRESIDENT ASBURY	BRISBANE, 29 JANUARY 2021

Application for approval of the Logistics Coordination Unit (NT) Enterprise Agreement 2020 - 2023.

[1] CareFlight Limited T/A CareFlight (the Applicant) applies to the Fair Work Commission (the Commission) for approval of an enterprise agreement known as the Logistics Coordination Unit (NT) Enterprise Agreement 2020 - 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] Undertakings were provided by the Applicant in response to concerns the Commission held in relation to the operation of certain clauses. A copy of the Undertakings is attached as Annexure A to this decision. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or

(b) result in substantial changes to the Agreement.

[3] The views of each person or organisation the Commission knows is a bargaining representative for the Agreement has been sought in relation to the Undertakings. Pursuant to subsection 190(3) of the Act, I accept the Undertakings. In accordance with s.201(3) of the Act, a copy of the undertakings will be attached to the Agreement and forms part of the Agreement.

[4] I note that the clause 20(f)(i) of the Agreement may be inconsistent with the National Employment Standards (NES). I note that the Applicant has given an undertaking in relation to this clause, that the Agreement will be read and interpreted in conjunction with the NES and that where there is an inconsistency between a provision of the Agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency. On this basis, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES. I also note that by virtue of s. 55 of the Act, an enterprise agreement must not exclude the NES or any provisions of the NES and s. 56 provides that a term of an enterprise agreement has no effect to the extent that it contravenes s. 55.

[5] Clause 31(b) of the Agreement contained typographical errors in relation to the correct period of notice provided for in that clause. The Applicant sought a correction under s.586 of the Act. I consider it appropriate to exercise my discretion under s.586 of the Act to correct an obvious error in the Agreement.

[6] I am satisfied, on the basis of information set out in the Form F16 Application for approval of an enterprise agreement, the Form F17 Employer’s declaration in support of an application for approval of the Agreement and responses to requests for further information provided by the Applicant, that each of the requirements of ss. l86, 187 and 188 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A), and on the basis of the information contained in the Form F17, I am satisfied that the group of employees covered by the Agreement was fairly chosen.

[7] The Australian Services Union being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover that organisation. In accordance with s.201(2) of the Act, and based on the declaration provided by the organisation, I note that the Agreement covers this organisation.

[8] The nominal expiry date of the Agreement at clause 4(a) states that the Agreement operates for three years after the date it commences to operate and that the nominal expiry date is 12 months following the end of the three year agreement. Section 186(5)(b) of the Act requires that the Commission must be satisfied that the nominal expiry date of an agreement is not more than 4 years after the day on which the Commission approves the agreement. The Applicant has provided an undertaking that the nominal expiry date will be 4 years from the date of approval.

[9] The Agreement is approved in accordance with s.54 of the Act and will operate from 4 February 2021. The nominal expiry date of the Agreement is 29 January 2025.

DEPUTY PRESIDENT

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Annexure A