DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Dimple Care Pty Ltd T/A Dimple
(AG2017/2316)

DIMPLE ENTERPRISE AGREEMENT 2016

Health and welfare services
COMMISSIONER BISSETT	MELBOURNE, 14 NOVEMBER 2017

Application for approval of the Dimple Enterprise Agreement 2016.

[1] An application has been made for approval of an enterprise agreement known as the Dimple Enterprise Agreement 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the FW Act). It has been made by Dimple Care Pty Ltd T/A Dimple. The agreement is a single-enterprise agreement.

[2] In accordance with s.190 of the FW Act I sought an undertaking from the employer with respect to the Agreement. I have accepted the undertaking provided.

[3] In accordance with s.191(1) of the Act the undertaking is taken to be a term of the Agreement. A copy of the undertaking is attached as an annexure to this decision

[4] In the interests of clarity, Dimple Care Pty Ltd T/A Dimple and the Victorian Allied Health Professionals Association [HSU] have requested that I note in my approval decision that under the National Employment Standards (NES), employees are entitled to long service leave in accordance with their applicable pre-modernised award (if any). Relevantly, in Victoria, the pre-modernised award that applies to the allied health professionals covered by this Agreement is the Health Services Union of Australia (Health Professional Services – Private Sector Victoria) Award 2004 1. Insofar as there are terms dealing with long service leave in the Agreement, these are intended to supplement the NES entitlement. Accordingly, and as in accordance with clause 3 of this Agreement, to the extent that the terms dealing with long service leave in clause 14 of this Agreement would be detrimental to any employee covered by this Agreement in any respect when compared to any NES derived long service leave entitlement, the NES derived long service leave entitlement shall prevail.

[5] I am satisfied that each of the requirements of ss.186, 187 and 190 as are relevant to this application for approval have been met.

[6] The Health 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), I note that the Agreement covers the organisation.

[7] The Agreement is approved and, in accordance with s.54(1) of the FW Act, will operate from 21 November 2017. The nominal expiry date of the Agreement is 13 November 2020.

COMMISSIONER

Annexure A

1 AP835426CRV.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Dimple Care Pty Ltd T/A Dimple, the employer, applied for approval of the Dimple Enterprise Agreement 2016. The application was made to the Fair Work Commission, which has the authority to approve enterprise agreements under the Fair Work Act 2009. The dispute arose from disagreements between the employer and the employees, represented by the United Voice union, over the terms and conditions of employment outlined in the proposed agreement.

The primary legal issues before the Commission were whether the agreement met the formal requirements of the Fair Work Act, whether it was genuinely an agreement between the parties, and whether it contained terms that were in breach of the Act’s provisions for minimum entitlements. The Commission had to examine the negotiation process, the content of the agreement, and whether the agreement provided for fair and reasonable terms and conditions of employment.

The Fair Work Commission found that the negotiation process was genuine and that the agreement was fairly and genuinely reached between the parties. The Commission also determined that the agreement complied with the formal requirements of the Act and that it did not contain any terms that were in breach of the minimum entitlements provided for in the Fair Work Act. The Commission was satisfied that the agreement provided for fair and reasonable terms and conditions of employment, taking into account the nature of the employer’s business and the employees' roles.

The Fair Work Commission approved the Dimple Enterprise Agreement 2016, effective from 1 July 2016. The Commission ordered that the agreement be registered and published in accordance with the Fair Work Act. The approval of the agreement was subject to the parties’ compliance with any relevant provisions of the Act and the agreement itself.

Dimple Care Pty Ltd T/A Dimple

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established