Uniting AgeWell

[2019] FWCA 2832

[2019] FWCA 2832

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Uniting AgeWell
(AG2018/5625)

UNITING AGEWELL VICTORIA ANMF AND HWU ENTERPRISE AGREEMENT 2018

Health and welfare services
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 30 APRIL 2019

Application for approval of the Uniting AgeWell Victoria ANMF and HWU Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Uniting AgeWell Victoria ANMF and HWU Enterprise Agreement 2018 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Uniting AgeWell (Employer). 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.

[3] 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.

[4] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES). However, noting Clause 7 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:

•  Clause 31.13(a) (p.35) of the Agreement, which provides that in determining “ordinary pay” for the purposes of annual leave, where no ordinary time rate of pay is fixed for an employee's work, the ordinary time rate of pay shall be deemed to be the average weekly rate during the period in respect of which the right to the annual leave accrues;

•  Clause 31.13(b) (p.35) of the Agreement, which provides that in determining “ordinary pay” for the purposes of annual leave, where no normal weekly number of hours is fixed for an employee, the normal weekly number of hours of work shall be deemed to be the average weekly number of hours worked during the period in respect of which the right to the annual leave accrues;

•  Clause 32.16(c) of the Agreement, which states the aggregate of paid sick leave, special maternity leave and parental leave, including parental leave taken by a spouse, may not exceed 52 weeks;

•  Clause 35 of the Agreement, which has the effect of excluding casuals from an entitlement to unpaid carer’s leave;

•  Clause 39.1(a) of the Agreement, which limits an entitlement to compassionate leave as when a member of the employees’ immediate family has a serious illness or dies;

•  Clause 69.5 of the Agreement, which states that if an employee fails to give notice of termination, the Employer shall have the right to withhold monies due to the employee with a maximum amount equal to the ordinary time rate of pay for the period of notice;

•  Clause 69.6 of the Agreement, which provides that where an employee has given or has been given notice refuses to work or is absent from work without just cause or excuse, the employee shall be deemed to have abandoned their employment and shall not be entitled to payment for the period of notice; and

•  Clause 71.1 of the Agreement, which states that severance payments shall not exceed the amount the employee would have earned if employment with the Employer had proceeded to the employee's normal retirement date.

[5] The Australian Nursing and Midwifery Federation and Health Services Union of Australia, being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2), I note that the Agreement covers the organisations.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 May 2019. The nominal expiry date of the Agreement is 30 September 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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Annexure A