Civic Group Australia Limited as trustee for Civic Church T/A Yukana

[2023] FWCA 2588

[2023] FWCA 2588

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Civic Group Australia Limited as trustee for Civic Church T/A Yukana

(AG2023/2382)

CIVIC GROUP AUSTRALIA LIMITED ENTERPRISE AGREEMENT 2023

Aged care industry
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 17 AUGUST 2023

Application for approval of the Civic Group Australia Limited Enterprise Agreement 2023

1. An application has been made for approval of an enterprise agreement known as the Civic Group Australia Limited Enterprise Agreement 2023 (Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (Act). It has been made by Civic Group Australia Limited as trustee for Civic Church T/A Yukana (Employer). The Agreement is a single-enterprise agreement.

1. In determining whether the Agreement has been genuinely agreed to by employees, I have taken into account the statement of principles made under s 188B of the Act.[1]

1. The Employer has provided written undertakings. 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. The undertakings are taken to be a term of the Agreement.

1. 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. For the purposes of the better off overall test, I note that I have had regard where relevant to s 193A(2)-(6), and I observe no views were expressed for the purposes of s 193A(6A).

1. I observe that the following clause is likely to be inconsistent with the National Employment Standards (NES). However, noting undertaking 2, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES:

(a)   Clause 5.1.7 provides that a casual employee who has been rostered on a regular and systemic basis over a period of 26 continuous weeks has the right to request conversion to permanent part-time employment. This appears inconsistent with s 66B of the Act which provides that an employer must make an offer to a casual employee if the employee has been employed by the employer for a period of 12 months; and during at least the last 6 months, the employee has worked a regular pattern of hours on an ongoing basis.

(b)   Clause 7.1.8 provides that if an employee is absent from work for more than 3 days without authorisation from the employer and/or without providing a reasonable explanation for the absence, then, the employer will deem that the employee has abandoned their employment and their employment will automatically terminate. This clause appears to exclude such employees from the minimum notice of termination under s 117(3) of the Act.[2]

1. Pursuant to s 202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

1. The Agreement is approved and, in accordance with s 54 of the Act, will operate from 24 August 2023. The nominal expiry date of the Agreement is 24 August 2027.

DEPUTY PRESIDENT

Annexure A

[1] Fair Work Act 2009 (Cth) s 188(1)

[2] Bienias v Iplex Pipelines Australia Pty Limited T/A Iplex Pipelines Australia[2017] FWCFB 38; Construction, Forestry, Maritime, Mining and Energy Union v CPB Contractors Pty Limited[2018] FWCFB 5773

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