Edgarley Home Inc T/A Edgarley Assisted Living

[2018] FWCA 7232

[2018] FWCA 7232

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

Edgarley Home Inc T/A Edgarley Assisted Living

(AG2018/1971)

Edgarley Home Incorporated Enterprise Agreement 2017 - 2020

Aged care industry
Commissioner Lee	SYDNEY, 26 NOVEMBER 2018

Application for approval of the Edgarley Home Incorporated Enterprise Agreement 2017 - 2020.

1. An application has been made for approval of an enterprise agreement known as the Edgarley Home Incorporated Enterprise Agreement 2017 - 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Edgarley Home Inc T/A Edgarley Assisted Living. The Agreement is a single enterprise agreement.

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.

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.

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 lodged contained an error at Appendix B. On 21 November 2018, the Applicant filed an amended version of the Agreement pursuant to s.586 of the Act. I am satisfied that the correction should be made and that it is appropriate to do so pursuant to s.586 of the Act.

1. I note the following provisions are inconsistent with the National Employment Standards;

·Clauses 12.2(b) which provides that if an employee fails to give the required notice, the employer may withhold from any monies due to the employee on termination under the agreement, or the National Employment Standards.

·Clause 51.2 which provides that an employee may elect to take half of the applicable long service leave at double pay over half the time.

Given the National Employment Standards precedence clause at Clause 5 of the agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.

1. The Australian Nursing and Midwifery Federation 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.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 3 December 2018. The nominal expiry date of the Agreement is 2 December 2021.

COMMISSIONER

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Annexure A