Southern Cross Care (Qld) Inc. T/A Southern Cross Care

[2022] FWCA 1255

[2022] FWCA 1255

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Southern Cross Care (Qld) Inc. T/A Southern Cross Care

(AG2022/532)

Southern Cross Care (Qld) - Aged Care Enterprise Agreement 2021

Aged care industry
COMMISSIONER HUNT	BRISBANE, 11 APRIL 2022

Application for approval of the Southern Cross Care (Qld) - Aged Care Enterprise Agreement 2021

1. Southern Cross Care (Qld) Inc. T/A Southern Cross Care (the Employer) has applied for approval of an enterprise agreement known as the Southern Cross Care (Qld) - Aged Care Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act).  The Agreement is a single-enterprise agreement.

1. The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with the Employer, and as a result, the Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A.  Pursuant to s.190(4) of the Act, I sought the views of the Australian Nursing and Midwifery Federation (ANMF), The Australian Workers’ Union (AWU), and the United Workers’ Union (UWU), regarding the undertakings, allowing a period of two business days from receipt of the undertakings to provide any views. The ANMF provided views as to the undertakings. The ANMF was invited to advise whether it intended to submit that the Agreement did not pass the better off overall test (BOOT), and the ANMF advised that it did not have any further submission to make.

1. The ANMF raised a concern about the enforceability of clause 11.3(b) of the Agreement. I advised that there is nothing preventing the Employer from citing the application of clause 11.1(d) of the relevant award and that the terms of an agreement could reference any other extraneous material, whether it applied to the parties or not. The ANMF did not wish to make any further submission on this point.

1. 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.  Pursuant to s.190 of the Act, I accept the undertakings.  In accordance with s.201(3) of the Act, I note that the undertakings are taken to be a term of the Agreement.

1. I have taken into consideration the material filed in the Commission. 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.  The Agreement does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

1. The ANMF, the AWU, and the UWU, being bargaining representatives for the Agreement, have 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 the ANMF, the AWU, and the UWU.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 18 April 2022.  The nominal expiry date of the Agreement is 31 August 2023.

COMMISSIONER

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ANNEXURE A