St John Of God Health Care Inc T/A St John Of God Health Care
[2023] FWCA 2804
•4 SEPTEMBER 2023
| [2023] FWCA 2804 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
St John Of God Health Care Inc T/A St John Of God Health Care
(AG2023/2856)
ST JOHN OF GOD HEALTH CARE MAINTENANCE CAREGIVERS AGREEMENT 2023
| Health and welfare services | |
| DEPUTY PRESIDENT O’KEEFFE | PERTH, 4 SEPTEMBER 2023 |
Application for approval of the St John of God Health Care Maintenance Caregivers Agreement 2023.
An application has been made for approval of an enterprise agreement known as the St John Of God Health Care Maintenance Caregivers 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 St John Of God Health Care Inc T/A St John Of God Health Care (the Applicant). The Agreement is a single enterprise agreement.
The notification time for the Agreement under s.173(2) was 2 February 2023 and the Agreement was made on 7 August 2023. Accordingly, the genuine agreement requirements are assessed under the Act as those applying before 6 June 2023 and the better off overall test is that applying on and from 6 June 2023[1].
The Applicant expressed the view that the Agreement passes the Better Off Overall Test (BOOT) and provided a summary of why it expressed this view. Consistent with s.193A(3) of the Act I have given consideration to this view when determining whether the Agreement passes the BOOT. The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) who were bargaining agents, did not express a view as to whether the Agreement passes the BOOT.
The Applicant has provided written undertakings. 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.
Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.
Noting the undertakings provided, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.
The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) lodged Form F18 statutory declarations giving notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act, I note the Agreement covers the CEPU and CFMMEU.
The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 31 August 2025.
DEPUTY PRESIDENT
[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.
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