Evergreen Life Care Limited

[2022] FWCA 1903

[2022] FWCA 1903

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Evergreen Life Care Limited

(AG2022/1212)

Evergreen Life Care Enterprise Agreement 2021-2024

Aged care industry
COMMISSIONER MATHESON	SYDNEY, 9 JUNE 2022

Application for approval of the Evergreen Life Care Enterprise Agreement 2021-2024.

1. An application has been made for approval of an enterprise agreement known as the Evergreen Life Care Enterprise Agreement 2021-2024 (Agreement). The application was made by Evergreen Life Care Limited (Applicant) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single enterprise agreement.

1. The application was accompanied by a signature page that did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to waive an irregularity in the form or manner in which an application was made, and do so pursuant to s.586(b) of the Act.

1. The application was not lodged within 14 dates after the Agreement was made. Pursuant to s.185(3)(b) of the Act, in all the circumstances, I consider it fair to extend the time for making the application to the date it was made, being 22 April 2022, and grant the extension until this date.

1. I observe that certain provisions of the Agreement may be inconsistent with the National Employment Standards (NES). However, noting clause 7.2 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A of this decision (Undertakings). The views of each person I know is a bargaining representative for the Agreement were sought in relation to the Undertakings and no objections were raised. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a)cause financial detriment to any employee covered by the Agreement; or

(b)result in substantial changes to the Agreement.

1. Pursuant to s.190(3) of the Act, I accept the Undertakings.

1. Subject to the Undertakings, and on the basis of the materials before the Commission, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to the application for approval of the Agreement have been met.

1. The Health Services Union and the Australian Nursing and Midwifery Federation, 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) of the Act, I note that the Agreement covers the organisations.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 16 June 2022. The nominal expiry date of the Agreement is 30 June 2024.

COMMISSIONER

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Annexure A