Eskleigh Foundation Inc

[2020] FWCA 5615

[2020] FWCA 5615

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Eskleigh Foundation Inc
(AG2020/2442)

ESKLEIGH FOUNDATION INCORPORATED ENTERPRISE AGREEMENT 2019

Social, community, home care and disability services
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 21 OCTOBER 2020

Application for approval of the Eskleigh Foundation Incorporated Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Eskleigh Foundation Incorporated Enterprise Agreement 2019 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Eskleigh Foundation Inc (Employer). The Agreement is a single enterprise Agreement.

[2] 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.

[3] Subject to 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. The undertakings are taken to be a term of the Agreement.

[4] I observe that clause 45(g) of the Agreement is likely to be inconsistent with the National Employment Standards (NES). However, noting clause 7(b) of the Agreement I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[5] I note that clause 10(b)(iii), which makes provision for a deduction on termination of employment, may contravene s.326 of the Act subject to the circumstances under which the deduction is proposed to be made. However, this is not a matter which affects the approval of the Agreement.

[6] 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.

[7] The Health Services Union of Australia 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.

[8] The Agreement is approved and in accordance with s.54 of the Act will operate from 28 October 2020. The nominal expiry date of the Agreement is 31 July 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE509303  PR723735>

Annexure A