Family Based Care Association North West Inc.

[2022] FWCA 457

[2022] FWCA 457

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Family Based Care Association North West Inc.

(AG2021/9179)

Family Based Care Association North West Inc Enterprise Agreement 2021

Social, community, home care and disability services
DEPUTY PRESIDENT MANSINI	MELBOURNE, 11 FEBRUARY 2022

Application for approval of the Family Based Care Association North West Inc Enterprise Agreement 2021.

1. Family Based Care Association North West Inc. has applied for approval of a single enterprise agreement known as the Family Based Care Association North West Inc Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

1. Since the application was made, the Commission raised concerns about whether the Agreement contravenes s.55 of the Act and whether the Agreement passes the “better off overall” test. Further information was provided in relation to these concerns.

1. Written undertakings were given in accordance with s.190 of the Act and are attached at Annexure A (Undertakings). The bargaining representatives did not oppose 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.

1. Noting undertaking 1, 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.

1. On the basis of the material contained in the 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.

1. The Health Services Union, being a bargaining representative for the Agreement, has given notice under s.183 of the Act. In accordance with s.201(2), I note that the Agreement covers this organisation.

1. The Agreement was approved on 11 February 2022 and, notwithstanding clause 5.1 and in accordance with s.54 of the Act, will operate from 18 February 2022. The nominal expiry date of the Agreement is 11 February 2025.

1. For the purposes of publication, the signature page of the Agreement has been redacted in part, for confidentiality and as the enterprise agreement when made did not contain the redacted details.[1]

DEPUTY PRESIDENT

Annexure A

[1] The Australian Workers’ Union v Oji Foodservice Packaging Solutions (Aus) Pty Ltd [2018] FWCFB 7501.

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