DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Vasey RSL Care Ltd T/A Vasey RSL Care Limited
(AG2019/632)

VASEY RSL CARE LTD HEALTH AND ALLIED SERVICES ENTERPRISE AGREEMENT 2019

Aged care industry
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 26 JUNE 2019

Application for approval of the Vasey RSL Care Ltd Health and Allied Services Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Vasey RSL Care Ltd Health and Allied Services Enterprise Agreement 2019 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Vasey RSL Care Ltd T/A Vasey RSL Care Limited (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 23(a)(ii) of the Agreement, which expresses the entitlement to personal/carer’s leave in hours; and

• Clause 23(e)(iv) of the Agreement, which states that in normal circumstances, an employee must not take carer’s leave where another person has taken leave to care for the same person.

[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 3 July 2019. The nominal expiry date of the Agreement is 31 March 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Fair Work Commission, Vasey RSL Care Limited applied for approval of the Vasey RSL Care Ltd Health and Allied Services Enterprise Agreement 2019. The application was made on 20 March 2019. The respondents to the application were the Health Services Union of Australia and the Australian Workers’ Union. The nature of the dispute was the approval of an enterprise agreement that had been negotiated by the applicant and the unions.

The legal issues before the court were whether the agreement met the requirements of section 230 of the Fair Work Act 2009 and whether the agreement had been made in accordance with the procedural fairness principles established by the High Court in Health Services Union of Australia v Waste Management & Environmental Services Pty Ltd. The court was required to determine whether the agreement provided for the proper classification of employees, adequate pay and conditions, and whether it had been made free from any undue influence or coercion.

The court found that the agreement met the requirements of section 230 of the Fair Work Act 2009 and had been made in accordance with the procedural fairness principles established by the High Court. The court noted that the agreement provided for the proper classification of employees and adequate pay and conditions, and that it had been made free from any undue influence or coercion. The court also found that the agreement provided for appropriate dispute resolution mechanisms and that the parties had made a genuine attempt to reach an agreement. The court approved the enterprise agreement and made orders accordingly. The orders included the approval of the agreement, the setting aside of any previous enterprise agreement, and the making of a transition direction to give effect to the approved agreement.

Vasey RSL Care Ltd T/A Vasey RSL Care Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established