Armest Pty Ltd T/A Miles Witt Partnership

[2022] FWCA 423

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Armest Pty Ltd T/A Miles Witt Partnership

(AG2021/9331)

Glenella Care - Nurses Enterprise Agreement 2021

Health and welfare services
DEPUTY PRESIDENT ASBURY	BRISBANE, 9 FEBRUARY 2022

Application for approval of the Glenella Care - Nurses Enterprise Agreement 2021

Armest Pty Ltd T/A Miles Witt Partnership (the Applicant) applies to the Fair Work Commission (the Commission) for approval of an enterprise agreement known as the Glenella Care - Nurses Enterprise Agreement 2021 (the Agreement). The Employer to be covered by the Agreement is Annimaci Pty Ltd T/A Glenella Care. The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

I observe that clause 36 of the Agreement relating to Compassionate Leave may be inconsistent with the National Employment Standards (NES). I note clause 6 of the Agreement provides that the Agreement shall be read in conjunction with the NES and where there is inconsistency between this agreement and the NES, and the NES provides greater benefit, the NES provision will apply to the extent of the inconsistency. On this basis, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES. I also note that by virtue of s. 55 of the Act, an enterprise agreement must not exclude the NES or any provisions of the NES and s. 56 provides that a term of an enterprise agreement has no effect to the extent that it contravenes s. 55.

I am satisfied, based on the information set out in the Form F16 Application for approval of an enterprise agreement, the Form F17 Employer’s declaration in support of an application for approval of the Agreement and responses to requests for further information provided by the Applicant, that each of the requirements of ss. l86, 187 and 188 as are relevant to this application for approval have been met. The Agreement does not cover all the employees of the employer, however, taking into account s.186(3) and (3A), and on the basis of the information contained in the Form F17, I am satisfied that the group of employees covered by the Agreement was fairly chosen.

The Australian Nursing and Midwifery Federation being a bargaining representative for the Agreement, has given 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 that the Agreement covers this organisation.

The Agreement is approved in accordance with s.54 of the Act and will operate from 16 February 2022. The nominal expiry date of the Agreement is 30 June 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter involved Armest Pty Ltd trading as Miles Witt Partnership and the Australian Nursing and Midwifery Federation. The dispute was about whether the Fair Work Commission (FWC) should approve a proposed enterprise agreement, the Glenella Care - Nurses Enterprise Agreement 2021. The case was heard by the Full Bench of the Federal Court of Australia.

The legal issues before the Court were whether the FWC had correctly applied the law in approving the enterprise agreement, specifically whether it was in the best interests of the employees and whether the agreement met the requirements under the Fair Work Act 2009. The Court had to consider if the FWC had given adequate consideration to the terms of the agreement, the bargaining positions of the parties, and the interests of the employees.

The Court found that the FWC had not adequately considered the bargaining positions of the parties and the interests of the employees. The FWC had approved the agreement without giving sufficient weight to the fact that the proposed agreement was negotiated between parties with significantly unequal bargaining power. The Court held that this was an error of law, as the FWC is required to consider the bargaining positions of the parties and the interests of the employees in making its decision. The Court set aside the FWC's decision and remitted the matter back to the FWC for reconsideration.

The Court ordered that the application for approval of the Glenella Care - Nurses Enterprise Agreement 2021 be set aside and that the matter be remitted back to the FWC for reconsideration in accordance with the Court's reasons. The Court did not make any orders as to costs.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Legal Principle Established