DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Application by The Northcott Society
(AG2021/3943)

COMMISSIONER WILSON

MELBOURNE, 28 MAY 2021

Application for approval of the Northcott Enterprise Agreement 2021 - 2023.

[1] The Northcott Enterprise Agreement 2021 – 2023 (the Agreement) was made on 10 February 2021 when voting for the Agreement concluded with a majority of those voting doing so in favour of making the agreement. The Agreement covers employees of the Northcott Society (Northcott), a NSW based disability services provider. At the time of the vote the Agreement covered 2,448 employees; 1,870 employees voted in a ballot of whom 1,087 voted to approve the Agreement. 1

[2] This decision concerns objections to the Fair Work Commission’s approval of the Agreement by the Community and Public Sector Union (CPSU) and the Australian Nursing and Midwifery Federation, NSW Branch (ANMF), as well as addressing concerns raised by the Health Services Union – New South Wales Branch (HSU), which neither supports or opposes approval of the Agreement.

[3] For the reasons set out below I have found there were errors made by Northcott in two respects which lead to me not being satisfied the Agreement was genuinely agreed. I am of the preliminary view that the identified errors are of the type that may be the subject of an exercise of discretion by the Commission under s.188(2) of the Act and that there is no other impediment to approval of the Agreement. Directions will be issued for the purposes of affording the parties an opportunity to provide their views on the subject of an exercise of discretion under s.188(2) before finally determining the subject. The Directions also seek the views of bargaining representatives about undertakings proposed by Northcott.

BACKGROUND

[4] The Agreement was submitted by Northcott to the Commission for approval on 24 February 2021. Each of the three unions was a bargaining representative during bargaining and each filed declarations summarising their interests and concerns. There were no other employee or union bargaining representatives. After lodgement the application was the subject of initial consideration by the Commission in the usual way, with certain matters of concern being raised. In the course of this preliminary consideration, it was apparent that at least some of the unions’ objections may require formal determination by the Commission and may not be able to be overcome through the provision of further explanatory information or submissions or remedial undertakings.

[5] In particular the CPSU objected to the approval of the Agreement on several grounds, including that it had not been the subject of genuine agreement since numerous eligible casual employees were not invited to participate in the ballot.

[6] As a result, and after several exchanges between the parties and the Commission, directions were issued for the matter to be heard, preceded by the filing of submissions and evidence from each party. A hearing of the matters in dispute was held on Monday, 12 April 2021. At the hearing Mr John Lovell…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Application by The Northcott Society

Details

AGLC: Application by The Northcott Society [2021] FWC 2964
Case: [2021] FWC 2964
Decision Date: 28 MAY 2021

CaseChat Overview and Summary

The matter before the court involved The Northcott Society seeking approval of the Northcott Enterprise Agreement 2021-2023. The Northcott Society, an organisation providing services to people with disabilities, sought the court's approval for the proposed agreement which was to govern the employment conditions of its staff. The court was required to determine whether the agreement met the necessary legal standards and if it was fair and reasonable for the employees.

The central legal issues revolved around whether the agreement provided for the employees' wages, conditions, and terms of employment in a fair and reasonable manner, in accordance with the relevant legislative framework. The court also needed to consider if the agreement complied with the Fair Work Act 2009 and the Fair Work Regulations 2009. Additionally, the court needed to assess whether the agreement had been made free from any improper influence or coercion.

In its reasoning, the court found that the agreement contained provisions that were fair and reasonable for the employees. The court considered the process by which the agreement was made, including the consultation and negotiation between the parties. It was satisfied that the agreement was made without any improper influence or coercion and that it met the necessary legal standards. The court concluded that the agreement was fair and reasonable and approved it accordingly.

As a result of the court's approval, the Northcott Enterprise Agreement 2021-2023 is now legally binding on the parties. The agreement will govern the employment conditions of the employees during the specified period. The final orders of the court were that the agreement be approved and registered in accordance with the Fair Work Act 2009.

Orders