Ozcare

[2019] FWCA 3251

[2019] FWCA 3251

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Ozcare
(AG2018/3346)

OZCARE ENTERPRISE AGREEMENT 2018

Health and welfare services
DEPUTY PRESIDENT MANSINI	MELBOURNE, 10 MAY 2019

Application for approval of the Ozcare Enterprise Agreement 2018.

[1] Ozcare has made an application for approval of a single enterprise agreement known as the Ozcare Enterprise Agreement 2018 (Agreement) pursuant to s.185 of the Fair Work Act 2009 (Act).

[2] Since the application was filed in July 2018, various concerns have been raised by and with the Commission.

[3] Having considered all of the submissions, evidence, further information and materials, undertakings and views provided by the Applicant and the bargaining representatives, I have determined that the Agreement must be approved in accordance with the Act.

Pre-approval requirements were met

[4] The Applicant has provided further information in support of the steps it took to meet the pre-approval requirements in the Act.

[5] Having regard to this further information, together with the original application and supporting materials, I am satisfied that the pre-approval requirements at ss.180(2), 180(3) and 180(5) of the Act were met.

Agreement passes the “better off overall test”

[6] I must be satisfied that the Agreement passes the better off overall test (BOOT) in assessing whether it must be approved in accordance with the Act.

[7] An enterprise agreement passes the BOOT if the Commission is satisfied, as at the time the application is made, that each award covered employee and each prospective award covered employee for the enterprise agreement would be better off overall if the enterprise agreement applied, than if the modern award applied. 1

[8] The relevant modern awards, for the purposes of the “better off overall test” for the Agreement, are: the Aged Care Award 2010; the Clerks – Private Sector Award 2010; the Health Professionals & Support Services Award 2010; Nurses Award 2010; and the Social, Community, Home Care & Disability Services Industry Award 2010.

[9] Following the award coverage decision of 26 April 2019 2, in conference on 1 May 2019, the Commission raised further and final concerns with the Applicant and the bargaining representatives. The Applicant subsequently addressed the Commission about those matters, and provided final consolidated written undertakings to address all of the Commission’s concerns, in accordance with s.190 of the Act (Undertakings). Although invited to do so, the bargaining representatives did not express any further views following the Applicant’s final submissions and Undertakings.

[10] A copy of the Undertakings is attached at 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.

[11] Further, on an overall assessment of whether employees to be covered would be better off overall under the Agreement, including with regard to the more beneficial and the less beneficial terms in the Agreement and the Undertakings, I am satisfied that the Agreement passes the better off overall test. 3

Approval and Operation of the Agreement

[12] Subject to the Undertakings, 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.

[13] Each of the Australian Nursing and Midwifery Federation, Australian Workers’ Union, Australian Municipal, Administrative, Clerical and Services Union and United Voice being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they respectively want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers these organisations.

[14] The Agreement was approved on 10 May 2019 and, in accordance with s.54, will operate from 17 May 2019. The nominal expiry date of the Agreement is 30 June 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE503378 PR708200>

Annexure A

 1   ss.193(1) and (6) of the Act; see ANMF v Domain Aged Care (QLD) Pty Ltd t/a Opal Aged Care [2019] FWCFB 1716 at [27].

 2   Resolving the relevant awards for the Care Assistant classification in the Agreement, see Ozcare [2019] FWC 2831.

 3   See Armacell Australia Pty Ltd and Others [2010] FWAFB 9985.