NADRASCA LTD T/A Nadrasca Community

[2022] FWCA 4448

[2022] FWCA 4448

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

NADRASCA LTD T/A Nadrasca Community

(AG2022/5114)

Nadrasca Industry Services Employee Enterprise Agreement 2022

Social, community, home care and disability services
COMMISSIONER CIRKOVIC	MELBOURNE, 19 DECEMBER 2022

Application for approval of the Nadrasca Industry Services Employee Enterprise Agreement 2022

1. An application has been made for approval of an enterprise agreement known as the Nadrasca Industry Services Employee Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by NADRASCA LTD T/A Nadrasca Community. The Agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 13 December 2022.

1. On 13 December 2022, my Chambers sent correspondence to the parties seeking to address concerns with certain aspects of the Agreement and invited the parties to address these matters. The concerns were as follows:

• Clause 27.7(d) of the Agreement, relating to deductions on termination, may be contrary to s.324(1)(a) of the Act and unenforceable should the Agreement be approved; and

• Clause 13.2 of the Agreement, relating to part-time employees, was silent on whether part-time employees receive overtime rates for all time worked in excess of hours as mutually agreed, while Clause 10.7 of the relevant Award granted part-time employees overtime rates for those hours. I sought submissions and/or an undertaking to address this issue.

1. 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.

1. 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.

1. The Australian Education Union, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

1. The Agreement was approved on 19 December 2022 and, in accordance with s.54, will operate from 26 December 2022. The nominal expiry date of the Agreement is 30 June 2025.

COMMISSIONER

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Annexure A