Mt View Homes Inc T/A Mt View Homes

[2022] FWCA 1444

[2022] FWCA 1444

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Mt View Homes Inc T/A Mt View Homes

(AG2022/1193)

Mt View Homes Inc. Aged Care Sector Employees Enterprise Agreement 2022

Aged care industry
COMMISSIONER PLATT	ADELAIDE, 29 APRIL 2022

Application for approval of the Mt View Homes Inc. Aged Care Sector Employees Enterprise Agreement 2022

1. An application has been made for approval of an enterprise agreement known as the Mt View Homes Inc. Aged Care Sector Employees Enterprise Agreement 2022 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Mt View Homes Inc T/A Mt View Homes (the Applicant). The agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 27 April 2022 and was determined on the papers.

1. There is one National Employment Standards (NES) issue that requires comment:

·   Clause 7.5.1 of the Agreement provides for compassionate leave but does not extend the entitlement to when the employee, their spouse, or de facto partner has a miscarriage or gives birth to a stillborn child. This appears to be inconsistent with s.104(1)(c) of the Act.

1. Clause 2.6 of the Agreement acts as an effective NES precedence clause, in that it states that in the event of an inconsistency between the Agreement and the NES, and the NES provides a greater benefit, the NES will apply to the extent of the inconsistency. As a result of the NES precedence clause, clause 7.5.1 will not apply to the extent that it is inconsistent with the NES.

1. The Applicant has submitted an undertaking in the required form dated 28 April 2022. The undertaking deals with the following topics:

·   Clause 4.5.2(c)(iv) of the Agreement, relating to apprentices, will not operate.

·   Under clause 6.8 of the Agreement, there will be a 4 hour minimum engagement for recall to work overtime.

·   The shift definitions provided at clause 6.9.1(d) of the Agreement will not apply and the shift definitions provided at clause 26 of the Aged Care Award 2010 (the Award). Shift penalties under the Agreement will be 12.5% for all afternoon shifts and 15% for all night shifts.

·   Clause 7.2.2 of the Agreement will operate so that the casual loading will apply on a cumulative basis for ordinary hours worked on a public holiday such that a casual employee who works on a public holiday will receive a 275% penalty.

·   Should sleepovers be introduced, they will operate consistently with clause 22.9 of the Award.

·   The standard rate as provided at clause 5.3.5 of the Agreement will be the minimum wage for an Aged Care Employee – Level 6 under the Award.

1. A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives did not express any view on the undertaking.

1. The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

1. I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 31 December 2025.

COMMISSIONER

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