Arcare Pty Ltd [2025] FWCA 1924 (10 June 2025)

[1] This decision deals with an application made for approval of an enterprise agreement known as the Arcare Pty Ltd, Aged care Services, Queensland- Enterprise Agreement 2024 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Arcare Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

[2] The Applicant has provided written undertakings. 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] The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

[4] Pursuant to s.190(3) of the Act, I accept the undertakings.

[5] Subject to the undertakings referred to above, having regard to the Statement of Principles,[1] on the basis of the material contained in the application and accompanying declarations, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

[6] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

• Clause 48.5- Public Holidays to the extent that agreement to substitute may be reached between the employer and an individual employee.

However, noting clause 5.2 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.

[7] The Australian Workers' Union (AWU), Australian Nursing and Midwifery Federation/Queensland Nurses and Midwives' Union (QNMU), United Workers Union (UWU) and Health Services Union (HSU) have each lodged a Form F18 statutory declaration giving notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act, I note the Agreement covers the AWU, QNMU, UWU, and HSU.

[8] The QNMU, the AWU and UWU raised concerns regarding the Better Off Overall Test (BOOT). I have considered those submissions, together with those made by the Applicant and have determined that given the more beneficial terms of the Agreement and the undertakings given, I am satisfied that the Agreement passes the BOOT.

[9] The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 30 June 2028.

[1] Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023.

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