Noosacare Inc.

[2025] FWCA 1193

[2025] FWCA 1193

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Noosacare Inc.

(AG2025/654)

NOOSACARE INC. ENTERPRISE AGREEMENT 2025

Aged care industry
DEPUTY PRESIDENT DOBSON	BRISBANE, 8 APRIL 2025

Application for approval of the NoosaCare Inc. Enterprise Agreement 2025

1. This decision deals with an application made for approval of an enterprise agreement known as the NoosaCare Inc. Enterprise Agreement 2025 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by NoosaCare Inc. (the Applicant). The Agreement is a single enterprise agreement.

1. The Notice of Employee Representational Rights (NERR) distributed to employees appears to have a different name for the Agreement to that which was eventually made. However, I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural departure from the prescribed form requirements of the NERR under s.174(1A) of the Act and that the employees covered by the Agreement were not likely to have been disadvantaged by this. Accordingly, I exercise the discretion conferred by s.188(5) of the Act.[1]

1. Correspondence was sent to the Employer by my Chambers on 18 March 25 raising a number of concerns including that the Agreement:

a.does not have a classification that matches to a Physiotherapist under the Award;

b.changes the definition of shift work such that employees commencing on shiftwork at 10am and before 1pm are paid less than the relevant award; and

c.does not provide for Sleepover entitlements.

1. The Employer responded on 27 March 2025 advising that they have no intention of employing physiotherapists, having employees working shiftwork that starts at 10am and before 1pm or working sleepover. I am consequently satisfied that per s. 193A(6A) of the Act that these situations are not a type of employment that is reasonably foreseeable for the purposes of s.193A(6) of the Act and the better off overall test. I note that should this change that pursuant to s.227A of the Act, application may be made for the future reconsideration of whether the agreement passes the BOOT during the life of the Agreement.

1. 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.

1. The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

1. Pursuant to s.190(3) of the Act, I accept the undertakings.

1. Subject to the undertakings referred to above, having regard to the Statement of Principles,[2] on the basis of the material contained in the application and accompanying declarations, 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.

1. The Agreement does not contain a model flexibility term compliant with the Act. Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement

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

i.Clause 32.5(c) – Public Holidays.

However, noting clause 6 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.

1. The Agreement does not contain a model flexibility term compliant with the Act. Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement. I note that the Applicant has also included this in their undertaking.

1. The United Workers Union (UWU) and the Australian Nursing and Midwifery Federation (AMNF) each lodged a Form F18 statutory declaration giving notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act, I note the Agreement covers the UWU and the ANMF.

1. The UWU and ANMF raised concerns regarding the Better Off Overall Test (BOOT). I have considered those submissions and on the basis of the undertakings given, the circumstances that are reasonably foreseeable (as set out in paragraphs [3] – [4]) and the more beneficial terms of the Agreement, I am satisfied that the Agreement passes the BOOT. 

1. The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 11 April 2028.

DEPUTY PRESIDENT

[1] Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[2019] FWCFB 318 [117].

[2] Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023.

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