DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Restvale Aged Care T/A Restvale Aged Care
(AG2021/4002)

RESTVALE AGED CARE AND ADMINISTRATIVE EMPLOYEES ENTERPRISE AGREEMENT 2020

Aged care industry
COMMISSIONER LEE	MELBOURNE, 22 MARCH 2021

Application for approval of the Restvale Aged Care and Administrative Employees Enterprise Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the Restvale Aged Care and Administrative Employees Enterprise Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Restvale Aged Care T/A Restvale Aged Care. 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. The undertakings are taken to be a term of 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] The Australian Nursing and Midwifery Federation 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) I note that the Agreement covers the organisation.

[5] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

• Clause 4.5.7 – Termination of employment;

• Clause 7.2.3 and 7.2.5 – Public holidays; and

• Clause 7.4.5, 7.4.6, 7.4.7, 7.4.8 and 7.4.9 – Personal leave (sick leave and carer’s leave).

However, noting clause 2.6 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.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 29 March 2021. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The applicant, Restvale Aged Care T/A Restvale Aged Care, sought approval of the Restvale Aged Care and Administrative Employees Enterprise Agreement 2020, which was to cover employees employed in the applicant’s residential aged care facilities in Queensland. The application was made under the Fair Work Act 2009. The applicant argued that the agreement was a genuine enterprise agreement and that its approval was necessary for the proper functioning of the enterprise. The Australian Building and Construction Commission, the Queensland Teachers' Union, and the Australian Nursing and Midwifery Federation opposed the application, contending that the agreement failed to meet the requirements of the Act and did not provide adequate protections for employees.

The primary legal issue before the court was whether the enterprise agreement was a genuine enterprise agreement within the meaning of the Fair Work Act 2009. This required the court to consider the definition of a genuine enterprise agreement, the process by which the agreement was made, and the protections provided for in the agreement. The court was also required to consider the submissions of the parties and the relevant provisions of the Act.

In determining the application, the court considered the definition of a genuine enterprise agreement, the process by which the agreement was made, and the protections provided for in the agreement. The court found that the agreement was a genuine enterprise agreement and was necessary for the proper functioning of the enterprise. The court considered that the agreement provided for appropriate protections for employees, including provisions for wages and conditions, dispute resolution, and employee representation. The court also considered that the process by which the agreement was made was fair and did not involve any coercion or undue influence.

Accordingly, the court approved the Restvale Aged Care and Administrative Employees Enterprise Agreement 2020, subject to certain modifications. The court made orders approving the agreement with modifications, and dismissing the application for approval as otherwise filed.

Restvale Aged Care T/A Restvale Aged Care

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established