Ottrey Homes Cobram and District Retirement Villages Inc

[2019] FWCA 5876

[2019] FWCA 5876

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Ottrey Homes Cobram and District Retirement Villages Inc
(AG2019/1656)

OTTREY HOMES - COBRAM AND DISTRICT RETIREMENT VILLAGES INC. (TRADING AS OTTREY LODGE), ANMF AND HSU ENTERPRISE AGREEMENT 2019

Aged care industry
DEPUTY PRESIDENT MASSON	MELBOURNE, 23 AUGUST 2019

Application for approval of the called the Ottrey Homes - Cobram and District Retirement Villages Inc (trading as Ottrey Lodge), ANMF and HSU Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Ottrey Homes - Cobram and District Retirement Villages Inc (trading as Ottrey Lodge), ANMF and HSU Enterprise Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Ottrey Homes Cobram and District Retirement Villages Inc. The Agreement is a single enterprise agreement.

[2] 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.

[3] 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.

[4] I note that while employees were provided with a Notice of Employee Representational Rights, the notice was not in the prescribed form, as it stated that employees with questions could visit the Fair Work Ombudsman’s website or contact the “Fair Work Commission Infoline” with the relevant telephone number. The prescribed notice states that employees may direct questions to the Fair Work Ombudsman or Fair Work Commission. I am satisfied that in all of the circumstances and having regard to the Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others, 1 this constitutes a minor procedural or technical error for the purposes of s 188(2)(a). Further, I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2) of the Act.

[5] I note that Clauses 54.5 is inconsistent with the National Employment Standards (NES). Given the National Employment Standards precedence clause at clause 6 of the agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.

[6] The Australian Nursing and Midwifery Federation (ANMF) and the Health Services Union (HSU) being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the organisations.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 30 August 2019. The nominal expiry date of the Agreement is 31 May 2021.

DEPUTY PRESIDENT

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Annexure A