Very Special Kids T/A Very Special Kids

[2024] FWCA 4111

[2024] FWCA 4111

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Very Special Kids T/A Very Special Kids

(AG2024/3932)

VERY SPECIAL KIDS AND NURSES AND PERSONAL CARE WORKERS ENTERPRISE AGREEMENT 2024-2026

Health and welfare services
COMMISSIONER CONNOLLY	MELBOURNE, 25 NOVEMBER 2024

Application for approval of the Very Special Kids and Nurses and Personal Care Workers Enterprise Agreement 2024-2026

1. An application has been made for approval of an enterprise agreement known as the Very Special Kids and Nurses and Personal Care Workers Enterprise Agreement 2024-2026 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Very Special Kids T/A Very Special Kids (the Applicant). The Agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 31 October 2024.

1. The notification time for the Agreement under s.173(2) was 4 February 2024 and the Agreement was made on 23 September 2024.  Accordingly, the genuine agreement requirements the Agreement is to be assessed under are those applying after 6 June 2023 and the better off overall test (BOOT) is that applying on and from 6 June 2023. [1] 

1. On 11 November 2024, the Employer was invited to address aspects of the Agreement including through the provision of an undertaking.

1. There is one National Employment Standards (NES) issue that requires comment:

·   Deduction/withholding of monies due to the employee under the NES on termination: Clause 18.6 provides that if the employee fails to give the required notice of termination to the employer, the employer has the right to withhold from an employee’s termination pay an amount that is equal to the period of notice not given. We note that Clause 18.6 does not appear to limit the source of monies which may be deducted. The effect of this is that this clause appears to permit the employer to withhold monies owing to the employee under the NES (such as accrued but unused annual leave or long service leave on termination). This raises the issue that Clause 18.6 may be inconsistent with Chapter 2 Part 2.2 Division 2 of the Act.

1. Clause 8.1 of the Agreement acts as an effective NES precedence clause, in that it states that “This Agreement is not intended to exclude any part of the NES or to provide any entitlement which is detrimental to an Employee's entitlement under the NES. For the avoidance of doubt, the NES prevails to the extent that any aspect of this Agreement would otherwise be detrimental to an Employee.” As a result of the NES precedence clause, the above clause will not apply to the extent that it is inconsistent with the NES.

1. The Applicant has provided written undertakings, dated 14 November 2024, and a copy is attached in Annexure A. A copy of the undertaking has been provided to the bargaining representative and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative that responded, supported the undertaking.

1. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement, thus appearing to meet the requirements of s.190(3). The undertaking is taken to be a term of the Agreement.

1. 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) of the Act I note that the Agreement covers this organisation.

1. I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A of the Act as are relevant to this application for approval have been met.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 31 December 2026.

COMMISSIONER

Annexure A

[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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