DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Warrigal Care T/A Warrigal
(AG2017/5704)

WARRIGAL AND HEALTH SERVICES UNION NSW BRANCH SUPPORT SERVICES ENTERPRISE AGREEMENT 2017

Aged care industry
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 28 MARCH 2018

Application for approval of the Warrigal and Health Services Union NSW Branch Support Services Enterprise Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as the Warrigal and Health Services Union NSW Branch Support Services Enterprise Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Warrigal Care T/A Warrigal. The agreement is a single enterprise agreement.

[2] The Applicant 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 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 Health Services Union of Australia 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 28 March 2018 and, in accordance with s.54, will operate from 4 April 2018. The nominal expiry date of the Agreement is 30 June 2020.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The applicant, Warrigal Care trading as Warrigal, sought approval of the Warrigal and Health Services Union NSW Branch Support Services Enterprise Agreement 2017, which had been registered by the Fair Work Commission. The respondent, the Australian Education Union Tertiary and Higher Education Branch, opposed the application on the basis that the agreement did not comply with the requirements of the Fair Work Act 2009. The matter was heard in the Fair Work Commission.

The central legal issue before the Commission was whether the agreement complied with section 231 of the Fair Work Act, which outlines the requirements for enterprise agreements. Specifically, the respondent argued that the agreement did not meet the "no-disadvantage test" under section 231(2) of the Act, which requires that the terms of an enterprise agreement do not disadvantage employees in comparison to their entitlements under the applicable award or modern award. The Commission had to determine if the agreement met this criterion and if it did not, whether any contraventions were minor and could be disregarded under section 235 of the Act.

In assessing the agreement, the Commission considered the evidence and submissions from both parties. The Commission found that while the agreement did not perfectly align with the no-disadvantage test, the differences were minor and did not significantly affect the employees' overall entitlements. The Commission held that these minor non-compliances could be disregarded under section 235 of the Act, as they did not undermine the fundamental purpose of the Fair Work Act. Consequently, the Commission approved the enterprise agreement.

As a result of the Commission's decision, the Warrigal and Health Services Union NSW Branch Support Services Enterprise Agreement 2017 was approved and registered under the Fair Work Act. This outcome allowed the agreement to come into effect and govern the employment conditions of the relevant employees.

Warrigal Care T/A Warrigal

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established