Fairway Bayside Aged Care Limited t/a Fairway Bayside Aged Care

[2020] FWCA 3156

[2020] FWCA 3156

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Fairway Bayside Aged Care Limited t/a Fairway Bayside Aged Care
(AG2020/1362)

FAIRWAY BAYSIDE AGED CARE LIMITED (TRADING AS FAIRWAY BAYSIDE AGED CARE), ANMF AND HSU ENTERPRISE AGREEMENT 2020

Aged care industry
DEPUTY PRESIDENT MANSINI	MELBOURNE, 17 JUNE 2020

Application for approval of the Fairway Bayside Aged Care Limited (trading as Fairway Bayside Aged Care), ANMF and HSU Enterprise Agreement 2020.

[1] Fairway Bayside Aged Care has applied for approval of a single enterprise agreement known as the Fairway Bayside Aged Care Limited (trading as Fairway Bayside Aged Care), ANMF and HSU Enterprise Agreement 2020 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] Since the application was made, the Commission raised concerns about the form of the application and whether the pre-approval requirements were met, the Agreement contravenes s.55 of the Act and passes the better off overall test. Further information was provided in relation to these concerns.

[3] Fairway Bayside Aged Care sought to correct a typographical error in the original application. In the circumstances, I am satisfied that this amendment should be allowed and that it is appropriate to do so pursuant to s.586 of the Act.

[4] Noting clause 6.1 of the Agreement, I am satisfied that the more beneficial entitlements of the National Employment Standards in the Act (NES) will prevail where there is an inconsistency between the Agreement and the NES.

[5] Written undertakings were given in accordance with s.190 of the Act and are attached at Annexure A (Undertakings). The bargaining representatives supported the Undertakings. 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. Pursuant to s.201(3) of the Act, the Undertakings are taken to be terms of the Agreement.

[6] On the basis of the material contained in the amended application, further information provided on request of the Commission and 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.

[7] The Australian Nursing and Midwifery Federation (Victorian Branch) and the Health Services Union Victorian No.1 Branch T/A Health Workers Union, being bargaining representatives for the Agreement, have respectively given notice under s.183 of the Act. In accordance with s.201(2) I note that the Agreement covers these organisations.

[8] The Agreement was approved on 17 June 2020 and, in accordance with s.54, will operate from 24 June 2020. The nominal expiry date of the Agreement is 31 May 2021.

DEPUTY PRESIDENT

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Annexure A