Ozcare [2025] FWCA 2844 (28 August 2025)

[1] Ozcare (the Employer) has made an application for approval of an enterprise agreement known as the Ozcare Enterprise Agreement 2025 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] The Agreement will apply to employees who are covered by either the Aged Care Award 2010 (Aged Care Award), the Health Professionals & Support Services Award 2020 (Health Award), the Nurses Award 2010 (Nurses Award), or the Social, Community, Home Care and Disability Services Industry Award 2010 (SCHADS Award).

[3] The Commission identified that 887 casual employees (out of 1870 employees) were included by the Employer as employees eligible to participate in the vote on the Agreement. The Employer provided submissions that all 887 casual employees were employed at the time and entitled to vote. I am satisfied that in light of the Full Bench decision in Appeal by Kmart Australia Limited t/a Kmart and others,[1] the requirement in s. 181(1) of the Act has been met.

National Employment Standards (NES) precedence term in Clause 1.5.1 of the Agreement

[4] Clause 6.2.4 of the Agreement provides that every employee shall provide reasonable notice of any absence from work due to personal/carer's leave to Ozcare and that 'reasonable notice' is defined as personal telephone contact, not including text messages, to the employee's direct supervisor as soon as practicable prior to the commencement of the shift, if this is the earliest practical time the employee can provide notification with notice including the reason for absence and expected duration. This differs from s.107 of the Fair Work Act which provides that notice must be given as soon as practicable (which may be a time after the leave has started).

[5] The Commission raised the following issues with the Employer which are relevant to whether employees are better off overall under the Agreement compared to the relevant Award:

1. Clause 3.11.3 of the Agreement states that a casual employee is required to give a moment's notice of termination.

2. Clause 4.1.2 of the Agreement states that the shift length or ordinary hours of work per day will be, exclusive of meal breaks, a maximum of 10 hours. This appears less beneficial than Clause 22 of the Aged Care Award and Clause 25 of the SCHADS Award which both state that the maximum hours per day shift is 8 hours.

3. Clause 4.6.2 of the Agreement states that where an employee is rostered to work ordinary hours between midnight Saturday and midnight Sunday, the employee will be paid a loading of 75% of their ordinary rate of pay for the hours worked during this period. This appears less beneficial than Clause 25 of the SCHADS Award which states that the weekend penalty on a Sunday is 200%.

4. Clause 7.14.4 of the Agreement permits employees to work 12 ordinary hours at their Ordinary Rate of Pay plus shift penalties. This may result in employees being worse off due to the lack of overtime payable for those shifts.

Section 190 Undertakings

[6] The Employer provided written undertakings to address the above NES and BOOT issues. A copy of the undertakings is attached in Schedule 1. 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.

Section 186, 187, 188 and 190

[7] Subject to the undertakings referred to above, 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.

Section 183 Bargaining Representatives

[8] The Australian Nursing and Midwifery Federation (ANMF), United Workers' Union (UWU), Australian Workers' Union (AWU), and Australian Municipal, Administrative, Clerical and Services Union (ASU) being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want to be covered by the Agreement.

[9] In accordance with s.201(2), I note that the Agreement covers the ASU, UWU, AWU, and ANMF.

[10] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 4 September 2025. The nominal expiry date of the Agreement is 30 June 2028.

[1] [2019] FWCFB 7599

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