Onecare Limited

[2024] FWCA 4483

[2024] FWCA 4483

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Onecare Limited

(AG2024/4430)

ONECARE LTD GENERAL EMPLOYEES ENTERPRISE AGREEMENT 2023

Aged care industry
COMMISSIONER YILMAZ	MELBOURNE, 13 DECEMBER 2024

Application for approval of the OneCare Ltd General Employees Enterprise Agreement 2023

1. An application has been made for approval of an enterprise agreement known as the OneCare Ltd General Employees Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Onecare Limited. The Agreement is a single enterprise agreement.

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, 193 and 193A 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 ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

1. I note the workplace delegates’ rights term at clause 51 provides a “combined total of five (5) days paid leave each calendar year” I sought clarification as this could be interpreted as providing 5 days in total for all delegates’. The Applicant clarified the intent of the clause is for 5 days in total for each delegate. Accordingly, for the avoidance of doubt and pursuant to s.205A(2) of the Act, the workplace delegates’ rights term prescribed by the Aged Care Award 2010 is taken to be a term of the Agreement.

1. In assessment of the better off overall test (BOOT) the Agreement was considered against both the Aged Care Award 2010 and the Social, Community, Home Care and Disability Services Industry Award 2010 (SCHADS Award) of which neither award is incorporated in the Agreement. For those employees performing home services, I sought clarification whether they may be required by their employer to perform first aid in the workplace consistent with clause 20.6(a)(iii) of the SCHADS Award. My inquiry of the Applicant was limited to the services provided by home care employees covered by the SCHADS Award. The employer confirmed that the first aid allowance is not relevant to home care workers as they do not provide first aid in the workplace or to another employee. I am satisfied in these circumstances that the first aid allowance is not applicable for the assessment of the BOOT. While I understand that both the HSU and ANMF prefer an undertaking in the event the employer may require a home care services employee to perform first aid in the workplace, I am not satisfied that these employees perform first aid in the workplace in addition to their duties as home care providers. Unless these employees are required to perform first aid as part of their regular duties, I have no concern that the rates are high enough to meet the BOOT. In these circumstances, I do not require an undertaking from the Applicant.   

1. The Australian Nursing and Midwifery Federation and the Health Services Union, both being a bargaining representative for the Agreement, have each 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 is approved and in accordance with s.54, will operate from 20 December 2024. The nominal expiry date of the Agreement is 30 July 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

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Annexure A