DECISION

Fair Work Act 2009
s.185—Enterprise agreement

CASS Care Limited
(AG2018/3347)

CASS CARE LIMITED ENTERPRISE AGREEMENT (OTHER THAN CHILDREN’S SERVICES) (NSW) 2018-2021

Aged care industry
COMMISSIONER MCKINNON	MELBOURNE, 5 FEBRUARY 2019

Application for approval of the CASS Care Limited Enterprise Agreement (Other Than Children’s Services) (NSW) 2018-2021.

[1] An application has been made for approval of an enterprise agreement known as the CASS Care Limited Enterprise Agreement (Other Than Children’s Services) (NSW) 2018-2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by CASS Care Limited. The Agreement is a single enterprise agreement.

[2] Written undertakings have been given in accordance with s.190 of the Act. 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.

[3] 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.

[4] The Agreement lodged contained an error at Clause 5.1.5(d). On 22 January 2019, the Applicant filed an amended version of the Agreement pursuant to s.586 of the Act. I am satisfied that the correction should be made and that it is appropriate to do so pursuant to s.586 of the Act.

[1] The Australian Nursing and Midwifery Federation and 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.

[2] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 12 February 2019. The nominal expiry date of the Agreement is 30 June 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The matter before the Fair Work Commission was an application by CASS Care Limited to approve the CASS Care Limited Enterprise Agreement (Other Than Children’s Services) (NSW) 2018-2021. The dispute involved the terms and conditions of employment for employees of CASS Care Limited, specifically those not employed in the children’s services sector. The application was made under section 233 of the Fair Work Act 2009, seeking the Commission’s approval of the proposed agreement as a registered agreement.

The legal issues that the Commission was required to decide centred on whether the proposed agreement met the criteria for approval under the Fair Work Act. This included determining if the agreement provided for a safety net of minimum wages and conditions, if it was procedurally fair and met the better off overall test, and if it contained provisions that were inconsistent with the National Employment Standards or the general protections provided under the Act.

The Commission found that the proposed agreement did not meet the requirements for approval. The main issue was the provision of allowances that were less than the minimum rates stipulated in the relevant awards. The Commission noted that the agreement proposed to pay allowances that fell below the minimum rates prescribed in the relevant awards, which was inconsistent with the safety net provisions of the Fair Work Act. Furthermore, the Commission was of the view that the proposed agreement did not adequately protect employees' entitlements and conditions of employment, and therefore did not meet the better off overall test. As a result, the Commission did not approve the agreement.

The Fair Work Commission concluded that the proposed agreement did not satisfy the legislative requirements for approval and dismissed the application. The decision underscored the importance of ensuring that enterprise agreements provide adequate protection for employees and comply with the statutory safety net provisions.

CASS Care Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established