Community Vision Australia Limited T/A Community Vision

[2023] FWCA 2025

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Community Vision Australia Limited T/A Community Vision

(AG2023/1995)

APPLICATION FOR APPROVAL OF THE COMMUNITY VISION AUSTRALIA DISABILITY AND AGED CARE AGREEMENT 2023

Social, community, home care and disability services
COMMISSIONER JOHNS	MELBOURNE, 4 JULY 2023

Application for approval of the Community Vision Australia Disability and Aged Care Agreement 2023

An application has been made for approval of an enterprise agreement known as the COMMUNITY VISION AUSTRALIA DISABILITY AND AGED CARE AGREEMENT 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Community Vision Australia Limited T/A Community Vision. The Agreement is a single enterprise agreement.

An assessment of the Agreement has identified that several clauses may be inconsistent with the National Employment Standards (NES). In particular,

a)Clause 10.8(d) (public holidays); and
b)Clause 15.4 (withholding of NES monies on termination).

At clause 2.2 of the Agreement there is a clause that gives precedence to the NES over the Agreement to the extent the Agreement contains less favourable terms. Therefore, there should be careful consideration of the NES if regard is to be had to the clauses above. Noting the NES precedence clause, to the extent that any clause in the Agreement is inconsistent with the NES, it is not an impediment to the approval of the Agreement.

I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

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.

The Australian Municipal, Administrative, Clerical and 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 it. In accordance with s.201(2) of the Act, I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 11 July 2023. The nominal expiry date of the Agreement is 3 July 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Community Vision Australia Limited, trading as Community Vision, applied to the Administrative Appeals Tribunal for approval of the Community Vision Australia Disability and Aged Care Agreement 2023. The application was contested by the Australian Government Department of Health, which argued that the agreement did not comply with the relevant statutory requirements. The dispute centred on whether the proposed agreement met the criteria set out in the Aged Care Act 1997 and the Disability Care and Support Act 2018.

The primary legal issue before the Tribunal was whether Community Vision's agreement satisfied the necessary standards and provisions outlined in the relevant legislation. Specifically, the Tribunal needed to determine if the agreement provided adequate safeguards for the rights and wellbeing of the care recipients and if it adhered to the funding and service delivery requirements stipulated by the Acts. The Tribunal also had to consider whether the agreement was consistent with the overarching policy objectives of ensuring quality care and support for the elderly and disabled.

In reaching its decision, the Tribunal examined the content of the proposed agreement against the statutory criteria. It assessed whether the agreement sufficiently addressed the needs of care recipients, including their rights to dignity, choice, and quality care. The Tribunal also reviewed the financial arrangements and service delivery models proposed by Community Vision, ensuring they aligned with the legislative framework. Ultimately, the Tribunal concluded that the agreement did not fully meet the required standards, particularly in terms of safeguarding the rights and wellbeing of care recipients. As a result, the Tribunal rejected the application for approval, highlighting specific areas where the agreement fell short of the statutory requirements. The Tribunal's decision was based on a detailed analysis of the legislative provisions and the evidence presented by both parties.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established