Community Living Options Inc

[2021] FWCA 1619

[2021] FWCA 1619

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Community Living Options Inc
(AG2021/3932)

COMMUNITY LIVING OPTIONS INC ENTERPRISE AGREEMENT 2019

Social, community, home care and disability services
DEPUTY PRESIDENT MANSINI	MELBOURNE, 25 MARCH 2021

Application for approval of the Community Living Options Inc Enterprise Agreement 2019.

[1] Community Living Options Inc has applied for approval of a single enterprise agreement known as the Community Living Options Inc Enterprise Agreement 2019 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] Since the application was made, the Commission raised concerns about whether: the pre-approval requirements were met, the Agreement contravenes s.55 of the Act, contains the mandatory terms and passes the better off overall test. Further information was provided in relation to these concerns.

[3] The model consultation term prescribed by the Regulations is taken to be a term of the Agreement, pursuant to s.205(2) of the Act.

[4] Noting clause 2.6 of the Agreement, I am satisfied that the more beneficial entitlements of the National Employment Standards in the Act (NES) will prevail where there is an inconsistency between the Agreement and the NES.

[5] Written undertakings were given in accordance with s.190 of the Act and are attached at Annexure A (Undertakings). The bargaining representatives did not oppose the Undertakings. 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.

[6] On an overall assessment of whether employees to be covered would be better off overall under the Agreement than the relevant reference instruments, including with regard to the identified more beneficial and the less beneficial terms in the Agreement and the Undertakings, I am satisfied that the Agreement passes the “better off overall test”. Pursuant to s.201(3) of the Act, the Undertakings are taken to be terms of the Agreement.

[7] On the basis of the material contained in the application, further information provided on request of the Commission and the Undertakings, 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.

[8] The United Workers’ Union and the Australian Municipal, Administrative, Clerical and Services Union, being bargaining representatives for the Agreement, have respectively given notice under s.183 of the Act. In accordance with s.201(2) I note that the Agreement covers these organisations.

[9] The Agreement was approved on 25 March 2021 and, in accordance with s.54, will operate from 1 April 2021. The nominal expiry date of the Agreement is 1 November 2023.

DEPUTY PRESIDENT

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Annexure A