DECISION

Fair Work Act 2009
s.185—Enterprise agreement

DPG Services Pty Ltd T/A Opal Aged Care
(AG2018/3344)

OPAL AGED CARE (WESTERN AUSTRALIA) ENTERPRISE AGREEMENT 2018

Aged care industry
DEPUTY PRESIDENT KOVACIC	CANBERRA, 29 MARCH 2019

Application for approval of the Opal Aged Care (Western Australia) Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Opal Aged Care (Western Australia) Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by DPG Services Pty Ltd T/A Opal Aged Care. The Agreement is a single enterprise agreement.

[2] Subject to concerns that have been addressed by way of undertakings, I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[3] As noted, pursuant to s.190(3), I have accepted undertakings from the employer. In accordance with s.191(1) of the Act the undertakings are taken to be a term of the Agreement. A copy of the undertakings are attached to this decision.

[4] The Australian Nursing and Midwifery Federation, the Health Services Union of Australia and United Voice, 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.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 5 April 2019. The nominal expiry date of the Agreement is 30 June 2021.

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the matter of DPG Services Pty Ltd trading as Opal Aged Care, the Fair Work Commission was presented with an application for the approval of the Opal Aged Care (Western Australia) Enterprise Agreement 2018. The application sought formal endorsement of the terms and conditions that had been negotiated between the employer and the employees, specifically those represented by the Australian Nursing and Midwifery Federation. The dispute arose from concerns regarding the fairness and appropriateness of the proposed agreement under the Fair Work Act 2009.

The primary legal issue before the Commission was whether the terms of the Opal Aged Care (Western Australia) Enterprise Agreement 2018 were in compliance with the provisions of the Fair Work Act, particularly in relation to the agreement's coverage, the process by which it was negotiated, and its overall fairness to the employees. The Commission needed to determine if the agreement met the necessary standards for approval, including ensuring it provided a safety net for employees and did not undermine the protection offered by the National Employment Standards.

Upon reviewing the submissions and the evidence presented, the Fair Work Commission concluded that the Opal Aged Care (Western Australia) Enterprise Agreement 2018 did not adequately protect the safety net entitlements of employees, particularly in relation to overtime rates. The Commission found that the agreement fell short of ensuring fair compensation for overtime work, which contravened the statutory requirement to provide at least the minimum entitlements set out in the National Employment Standards. Consequently, the Commission decided not to approve the agreement as it did not meet the necessary standards under the Fair Work Act.

In light of the findings, the Fair Work Commission issued its decision, withholding approval for the Opal Aged Care (Western Australia) Enterprise Agreement 2018. The Commission emphasised the importance of ensuring that any enterprise agreement provides adequate protection and does not undermine the statutory minimum entitlements of employees.

DPG Services Pty Ltd T/A Opal Aged Care

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established