Noosacare Inc. [2025] FWCA 1193 (8 April 2025)

[1] This decision deals with an application made for approval of an enterprise agreement known as the NoosaCare Inc. Enterprise Agreement 2025 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by NoosaCare Inc. (the Applicant). The Agreement is a single enterprise agreement.

[2] The Notice of Employee Representational Rights (NERR) distributed to employees appears to have a different name for the Agreement to that which was eventually made. However, I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural departure from the prescribed form requirements of the NERR under s.174(1A) of the Act and that the employees covered by the Agreement were not likely to have been disadvantaged by this. Accordingly, I exercise the discretion conferred by s.188(5) of the Act.[1]

[3] Correspondence was sent to the Employer by my Chambers on 18 March 25 raising a number of concerns including that the Agreement:

1. does not have a classification that matches to a Physiotherapist under the Award;

2. changes the definition of shift work such that employees commencing on shiftwork at 10am and before 1pm are paid less than the relevant award; and

3. does not provide for Sleepover entitlements.

[4] The Employer responded on 27 March 2025 advising that they have no intention of employing physiotherapists, having employees working shiftwork that starts at 10am and before 1pm or working sleepover. I am consequently satisfied that per s. 193A(6A) of the Act that these situations are not a type of employment that is reasonably foreseeable for the purposes of s.193A(6) of the Act and the better off overall test. I note that should this change that pursuant to s.227A of the Act, application may be made for the future reconsideration of whether the agreement passes the BOOT during the life of the Agreement.

[5] 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.

[6] 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.

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

[8] Subject to the undertakings referred to above, having regard to the Statement of Principles,[2] 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.

[9] The Agreement does not contain a model flexibility term compliant with the Act. Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement

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

1. Clause 32.5(c) - Public Holidays.