Mercy Community Services Ltd T/A Mercycare

[2024] FWCA 2624

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Mercy Community Services Ltd T/A Mercycare

(AG2024/2329)

Social, community, home care and disability services
COMMISSIONER LIM	PERTH, 16 JULY 2024

Application for approval of the MercyCare Family and Community Services Enterprise Agreement 2023

Mercy Community Services Ltd T/A Mercycare (Applicant) has applied for approval of an enterprise agreement known as the MercyCare Family and Community Services Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The Notice of Employee Representational Rights (the NERR) provided to the employees was not in the prescribed form. It is in the form as prescribed prior to 6 June 2023. I am satisfied that the Agreement would have been genuinely agreed to but for the slight departure from the NERR requirements in s 174(1)(A)(c) and that the employees covered by the Agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188 of the Act and exercise the discretion conferred by section 188(5) of the Act to disregard the minor technical error.

The Applicant has provided written 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.

In compliance with s 190(4) of the Act, the bargaining representative’s views regarding the undertakings proffered were sought. They were provided with the opportunity to raise and address any objections they had to the undertakings proffered by the Applicant. No objection was raised.

Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

I note that clause 53.4 of the Agreement appears to be inconsistent with the National Employment Standards (NES). However, I am satisfied that under clause 4.1 of the Agreement, the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Australian Municipal, Administrative, Clerical and Services Union (ASU) lodged a Form F18 statutory declaration giving notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note the Agreement covers the ASU.

The Agreement was approved on 16 July 2024 and will operate from 23 July 2024 in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 23 July 2028.

COMMISSIONER

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ANNEXURE A

CaseChat Overview and Summary

Mercy Community Services Ltd T/A Mercycare, an entity providing social, community, home care, and disability services, sought approval of the MercyCare Family and Community Services Enterprise Agreement 2023. The application was lodged with the Fair Work Commission under section 185 of the Fair Work Act 2009. The primary issue before the Commissioner was whether the Agreement, which was not in the prescribed form, could still be considered genuinely agreed to and approved despite the technical error. This required a determination under sections 186, 187, and 188 of the Act.

The Commissioner found that the Agreement was genuinely agreed to but for the slight departure from the Notice of Employee Representational Rights requirements. It was determined that employees were not likely to have been disadvantaged by the error. The Commissioner exercised the discretion under section 188(5) of the Act to disregard the minor technical error. The Commissioner was also satisfied that the written undertakings provided by the applicant would not cause financial detriment to employees or result in substantial changes to the Agreement. The bargaining representative's views on the undertakings were sought, and no objections were raised. The Commissioner noted that the Agreement covers the Australian Municipal, Administrative, Clerical and Services Union as required by section 201(2) of the Act.

The Commissioner approved the Agreement, subject to the undertakings, and it will operate from 23 July 2024. The nominal expiry date of the Agreement is 23 July 2028. The Commissioner highlighted that while there was an apparent inconsistency between the Agreement and the National Employment Standards, clause 4.1 of the Agreement ensures that the more beneficial entitlements of the NES prevail.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established