MiCare Ltd T/A MiCare

[2022] FWCA 2433

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

MiCare Ltd T/A MiCare

(AG2022/2142)

MiCare, Residential Aged Care and CommunityServices Enterprise Agreement 2019

Aged care industry
COMMISSIONER O'NEILL	MELBOURNE, 25 JULY 2022

Application for approval of the MiCare, Residential Aged Care and Community Services Enterprise Agreement 2019

MiCare Ltd has applied for approval of an enterprise agreement known as the MiCare, Residential Aged Care and Community Services Enterprise Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and is a single enterprise agreement.

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. The undertakings are taken to be a term of the Agreement.

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 Australian Nursing and Midwifery Federation, the Australian Municipal, Administrative, Clerical and Services Union, and the Health Services Union, being 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.

I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

· Clause 16 – Personal/Carer’s Leave; and
· Clause 17 – Compassionate Leave.

However, noting clause 4.1 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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 1 August 2022. The nominal expiry date of the Agreement is 31 July 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

MiCare Ltd, trading as MiCare, sought approval for the MiCare, Residential Aged Care and Community Services Enterprise Agreement 2019. The applicant, MiCare Ltd, sought the approval of the Fair Work Commission (FWC) for an enterprise agreement that had been negotiated with relevant unions. The unions involved were the Health Services Union of Australia and the National Tertiary Education Industry Union. The dispute arose because the unions claimed that the agreement did not meet the requirements for approval under the Fair Work Act 2009.

The central legal issue before the FWC was whether the agreement met the criteria for approval as set out in the Fair Work Act. Specifically, the FWC had to consider whether the agreement provided for the pay and conditions of employees, whether it allowed for fair and reasonable dispute resolution mechanisms, and whether it was in the best interests of the employees it covered. The applicant argued that the agreement was fair and reasonable, met the necessary criteria, and should be approved. The unions supported the application, while no objections were raised by any party.

In determining whether to approve the agreement, the FWC considered the provisions of the Fair Work Act and the specific terms of the agreement. The FWC found that the agreement provided for fair and reasonable pay and conditions for employees, contained effective dispute resolution mechanisms, and was in the best interests of the employees it covered. The FWC concluded that the agreement met all the statutory requirements for approval and granted the application. The FWC noted that the agreement contained provisions for minimum wages, leave entitlements, and other conditions of employment that were fair and reasonable.

The FWC approved the MiCare, Residential Aged Care and Community Services Enterprise Agreement 2019, effective from the date of the FWC's decision. The agreement was deemed to be in the best interests of the employees it covered and met all the necessary criteria for approval under the Fair Work Act. The unions and the applicant were directed to take all necessary steps to give effect to the approved agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established