Novita Services

[2022] FWCA 921

[2022] FWCA 921

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Novita Services

(AG2022/307)

Novita Enterprise Agreement 2021

Social, community, home care and disability services
COMMISSIONER PLATT	ADELAIDE, 17 MARCH 2022

Application for approval of the Novita Enterprise Agreement 2021

1. An application has been made for approval of an enterprise agreement known as the Novita Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Novita Services (the Applicant). The agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 22 February 2022.

1. On 24 February 2022, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

1. The Applicant filed undertakings on 3 March 2022 and 15 March 2022 which failed to satisfy me that the Agreement passed the better off overall test (BOOT). On 16 March 2022, I conducted a Hearing to determine whether the Agreement was capable of passing the BOOT.

1. At the conclusion of the Hearing, the Applicant submitted an undertaking in the required form dated 16 March 2022. The undertaking deals with the following topics:

·   The definition of a shift worker will be for the purposes of the National Employment Standards (NES).

·   Employees may be represented throughout the dispute resolution procedure contained in clause 17 of the Agreement.

·   Casual employees will be engaged for a minimum of three hours.

·   Clause 33.3 of the Agreement has been amended such that full-time employees may not work more than ten ordinary hours on any day.

·   Employees whose ordinary working hours include work on a Saturday or Sunday will be paid at their ordinary hourly rate plus an additional 50% loading.

·   Clauses 38.3-38.4 have been amended to ensure that part-time and casual employees in ASO-1, OPS-1 and TGO-0 will be entitled to the overtime conditions and rates as outlined in s.13.2(a), s.24.1 and s.24.3 of the Health Professionals and Support Services Award 2020 (the Award).

·   All other casual employees other than those mentioned above will also be entitled to overtime under the conditions outlined in s.24.1 of the Award.

·   Clauses 55.6.4 and 55.7.5 of the Agreement, which deal with employee deductions, will operate in a manner consistent with s.324 of the Act.

·   Clause 57.4.3 of the Agreement will operate in a manner consistent with the NES, such that there will be no bar on carer’s leave where another person has taken leave to care for the same person on the same day.

·   Despite clause 82 of the Agreement, which deals with abandonment of employment, employees will be entitled to notice of termination in accordance with the NES.

·   Casual and part-time employees in ASO-1, OPS-1 and TGO-0 who work regularly on Saturday or Sundays in isolation of any other ordinary days or work regularly between 6-8pm Monday to Friday in isolation of other ordinary hours will be paid in accordance with s.13.2(a), s24.1, s.24.2 and s.24.3 of 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 Community and Public Sector Union (CPSU) supported the undertakings, whilst the employee bargaining representatives did not express any view.

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. The CPSU, 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) of the Act I note that the Agreement covers this organisation.

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 30 June 2024.

COMMISSIONER

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