DECISION

Fair Work Act 2009
s.185—Enterprise agreement

St Paul de Chartres Residential Aged Care
(AG2020/232)

ST PAUL DE CHARTRES SUPPORT STAFF ENTERPRISE AGREEMENT 2019

Aged care industry
COMMISSIONER BOOTH	BRISBANE, 20 MARCH 2020

Application for approval of the St Paul de Chartres Support Staff Enterprise Agreement 2019.

[1] An application has been made under s.185 of the Fair Work Act 2009 (the Act) by St Paul de Chartres Residential Aged Care (the Applicant) for approval of the St Paul de Chartres Support Staff Enterprise Agreement 2019 (the Agreement). The Agreement is a single enterprise agreement.

[2] Correspondence was sent to the Applicant and the employee bargaining representatives on 25 February 2020, raising concerns in relation to the Agreement.

[3] The Applicant provided signed undertakings on 5 March 2020 to address the concerns raised.

[4] The undertakings meet the requirements of s.190(3) of the Act and I have accepted them. As a result, the undertakings are taken to be a term of the Agreement and are attached to this Decision as Attachment A.

[5] Notwithstanding the undertakings provided addressing concerns raised in relation to the National Employment Standards, I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

• Clause 32 – public holidays;

• Clause 11 – notice of termination;

• Clause 36 – family and domestic violence leave.

[6] However, noting clause 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 NES.

[7] Subject to the undertakings provided and the matter raised at paragraph [5] – [6], I am satisfied that each of the requirements of ss. 186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[8] The Agreement is approved and, in accordance with clause 2 of the Agreement and s.54 of the Act, will operate 7 days from the date of approval of the Agreement. The nominal expiry date is 30 June 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Attachment A.

CaseChat Overview and Summary

The matter involved an application by the St Paul de Chartres Residential Aged Care facility to have their 2019 Support Staff Enterprise Agreement approved by the Fair Work Commission. The application came before the Commission's delegate, the Registrar, who was required to determine whether the agreement met the statutory requirements set forth in the Fair Work Act 2009. The application was contested by the Australian Council of Trade Unions, which argued that the agreement did not adequately provide for the fair treatment of support staff in areas such as pay rates, leave entitlements, and workplace conditions.

The key legal issue before the Registrar was whether the proposed agreement contained the necessary provisions to be deemed an "Enterprise Agreement" under the Fair Work Act. This required consideration of whether the agreement was a genuine enterprise agreement, covered the requisite number of employees, and was made in accordance with the statutory process outlined in the Act. Additionally, the Registrar had to determine if the agreement met the "better off overall test" as required by section 173 of the Act, ensuring that the employees were not worse off financially under the new agreement.

The Registrar found that the application satisfied the statutory requirements for an enterprise agreement. The agreement was deemed genuine as it was made by the employer and the relevant employee representatives. The agreement was also found to cover a sufficient number of employees, as defined in the Act, and was made in compliance with the procedural requirements. Furthermore, the Registrar concluded that the agreement met the "better off overall test," as the support staff were not disadvantaged financially under the terms of the new agreement. Consequently, the Registrar approved the application for the agreement to be registered.

The final orders of the Registrar were that the St Paul de Chartres Support Staff Enterprise Agreement 2019 be registered under the Fair Work Act. The agreement was to take effect from the date of the Registrar's decision, and the parties were directed to comply with the terms and conditions set out in the agreement. This decision provided clarity and legal certainty for the employer and employees concerning the terms of their employment and workplace conditions.

St Paul de Chartres Residential Aged Care

DECISION

Attachment A.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established