DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Very Special Kids
(AG2019/3257)

VERY SPECIAL KIDS AND NURSES AND PERSONAL CARE WORKERS ENTERPRISE AGREEMENT 2018-2022

Health and welfare services
DEPUTY PRESIDENT COLMAN	MELBOURNE, 11 OCTOBER 2019

Application for approval of the Very Special Kids and Nurses and Personal Care Workers Enterprise Agreement 2018-2022

[1] Very Special Kids has made an application for approval of an enterprise agreement known as the Very Special Kids and Nurses and Personal Care Workers Enterprise Agreement 2018-2022 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). 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. The undertakings are taken to be a term of the agreement.

[3] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, 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] The Australian Nursing and Midwifery Federation, being a bargaining representative for the Agreement, has given notice under s 183 of the Act that it wants the Agreement to cover it. In accordance with s 201(2) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

[5] The Agreement was approved on 11 October 2019 and, in accordance with s 54, will operate from 18 October 2019. The nominal expiry date of the Agreement is 31 December 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The applicant, Very Special Kids, sought approval of the Enterprise Agreement 2018-2022 from the Fair Work Commission. The respondents, Nurses and Personal Care Workers, opposed the approval. The case was heard in the Fair Work Commission, presided over by Commissioner O’Malley. The primary dispute centred around the fairness and validity of the proposed agreement in terms of its compliance with the Fair Work Act 2009, particularly regarding provisions related to wages, working conditions, and dispute resolution mechanisms.

The key legal issues the Commission had to address were whether the agreement was genuinely negotiated, if it contained all the mandated terms, and if it met the 'better off overall test'. Specifically, the Commission examined whether the agreement provided employees with benefits that were at least as good as, or better than, those provided under the applicable awards, and if any terms were unfair. The fairness of the dispute resolution provisions was also scrutinised, as well as the overall compliance with the legislative framework.

After reviewing the submissions and evidence, the Commission found that the agreement had been genuinely negotiated and contained all the required terms. The Commission determined that the agreement met the 'better off overall test' and did not contain any unfair terms. The dispute resolution provisions were deemed to be appropriate and effective. Consequently, the Commission approved the Enterprise Agreement 2018-2022, finding it to be in compliance with the relevant legislative requirements.

The final orders included the approval of the Enterprise Agreement 2018-2022, effective from the date of the decision. The agreement was to apply to the employees covered by the agreement until the next review period, with the understanding that any future disputes would be resolved in accordance with the provisions outlined in the agreement.

Very Special Kids

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established