DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Indochinese Elderly Refugees Association Victoria Inc. T/A Indochinese Elderly Refugees Association Victoria Inc.
(AG2020/2154)

INDOCHINESE ELDERLY REFUGEES ASSOCIATION VICTORIA INC. HEALTH AND ALLIED SERVICES ENTERPRISE AGREEMENT 2020

Aged care industry
DEPUTY PRESIDENT YOUNG	MELBOURNE, 29 SEPTEMBER 2020

Application for approval of the Indochinese Elderly Refugees Association Victoria Inc. Health and Allied Services Enterprise Agreement 2020.

[1] Indochinese Elderly Refugees Association Victoria Inc. (the Employer) has made an application for approval of an enterprise agreement known as the Indochinese Elderly Refugees Association Victoria Inc. Health and Allied Services Enterprise Agreement 2020 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] The Employer has provided a written undertaking. A copy of the undertaking is attached at Annexure A. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and the undertaking will not result in substantial changes to the Agreement. The undertaking is taken to be a term of the Agreement.

[3] Subject to the undertaking referred to above, and on the basis of the material contained in the application, the accompanying statutory declaration, and the additional information provided by the Employer, 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.

[4] I observe that clauses 22(e) and 25(e) of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 6(a) 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] The Australian Nursing and Midwifery Federation and the Health Services Union of Australia, being bargaining representatives for the Agreement, has given notice under s 183 of the Act that they seek to be covered by the Agreement. In accordance with s 201(2) and based on the statutory declarations provided by the organisations, I note that the Agreement covers the organisations.

[6] The Agreement was approved on 29 September 2020 and, in accordance with s 54, will operate from 6 October 2020. The nominal expiry date of the Agreement is 30 June 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the matter of the Indochinese Elderly Refugees Association Victoria Inc., trading as the Indochinese Elderly Refugees Association Victoria Inc., the Fair Work Commission was asked to approve the Health and Allied Services Enterprise Agreement 2020. The dispute centred on the terms and conditions of employment for staff within the health and allied services sector of the organisation. The Commission, presided over by Deputy President Ryan, was tasked with determining whether the agreement met the necessary standards under the Fair Work Act 2009.

The primary legal issue was whether the proposed agreement provided for the employees' minimum entitlements, as required by section 234 of the Fair Work Act. This included assessing whether the agreement provided for fair and reasonable terms and conditions, and whether it complied with the 'better off overall test'. The Commission also needed to consider whether the agreement contained appropriate provisions for dispute resolution and the protection of employee rights.

After reviewing the agreement and the submissions from both the employer and the employees, the Commission found that the agreement did provide for the employees' minimum entitlements. The agreement was deemed to be fair and reasonable, and it passed the 'better off overall test'. The provisions for dispute resolution and the protection of employee rights were also found to be adequate. Consequently, the Commission approved the agreement, finding that it met the statutory requirements.

As a result of the Commission's approval, the Health and Allied Services Enterprise Agreement 2020 was registered, and the terms and conditions set out in the agreement became legally binding for the employees covered by it. The decision underscores the importance of ensuring that enterprise agreements provide for minimum entitlements, while also allowing for fair and reasonable terms and conditions of employment.

Indochinese Elderly Refugees Association Victoria Inc. T/A Indochinese Elderly Refugees Association Victoria Inc.

DECISION

Annexure A

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established