Fronditha Care

[2018] FWCA 7036

[2018] FWCA 7036

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Fronditha Care
(AG2018/4885)

FRONDITHA CARE, ANMF AND HSU ENTERPRISE AGREEMENT 2017

Aged care industry
COMMISSIONER HARPER-GREENWELL	MELBOURNE, 19 NOVEMBER 2018

Application for approval of the Fronditha Care, ANMF and HSU Enterprise Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as the Fronditha Care, ANMF and HSU Enterprise Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Fronditha Care. 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 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. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[4] The Agreement lodged contained an error at clause 26.6(e), clause 56(e)(ii), and clause 56.2(a). On 5 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.

[5] I note the following provisions are inconsistent with the National Employment Standards:

● Clause 53.5(c) which states that entitlement to personal leave is subject to the employee being responsible for care or support of the person concerned; and

● Clause 53.5(e) which provides that an employee must not take carer’s leave where another person has taken leave to provide care or support for the same person.

Given the National Employment Standards precedence clause at Clause 6.1 of the agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.

[6] The Australian Nursing and Midwifery Federation (ANMF) and Health Services Union (HSU) being a 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) I note that the Agreement covers the organisations.

[7] The Agreement was approved on 19 November 2018 and, in accordance with s.54, will operate from 26 November 2018. The nominal expiry date of the Agreement is 31 May 2021.

COMMISSIONER

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Annexure A