| [2019] FWCA 2425 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Armest Pty Ltd T/A Miles Witt Partnership
(AG2018/5599)
CANOSSA RESIDENTIAL SERVICES - QNMU ENTERPRISE AGREEMENT 2018
Health and welfare services | |
DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 10 APRIL 2019 |
Application for approval of the Canossa Residential Services - QNMU Enterprise Agreement 2018.
[1] An application has been made for approval of an enterprise agreement known as the Canossa Residential Services - QNMU Enterprise Agreement 2018 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by the Armest Pty Ltd T/A Miles Witt Partnership. The Agreement is a single enterprise Agreement.
[2] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. 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] Subject to the undertakings, 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.
[4] 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.
[5] The Agreement lodged contained a cross referencing error at clause 32.1. On 4 April 2019, the Applicant filed an amended version of the Agreement correcting this error. I am satisfied that the correction should be made and that it is appropriate to do so pursuant to s.586 of the Act.
[6] The Australian Nursing and Midwifery Federation, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2), I note that the Agreement covers the organisation.
[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 17 April 2019. The nominal expiry date of the Agreement is 30 June 2021.
DEPUTY PRESIDENT
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Annexure A
- AGLC
- Armest Pty Ltd T/A Miles Witt Partnership [2019] FWCA 2425
- Case
- [2019] FWCA 2425
- Decision Date
CaseChat Overview and Summary
The legal issues before the court involved verifying whether the agreement provided for the minimum entitlements prescribed by the Fair Work Act, whether it was free from any unfair content, and if the agreement had been genuinely negotiated between the parties. The court also had to consider whether the agreement complied with the procedural requirements for approval, including the necessity of a ballot for employee approval. Additionally, the court needed to assess the fairness and reasonableness of the agreement's terms in light of the broader industrial context.
The Fair Work Commission, in its decision, carefully examined the terms of the agreement and found that the proposed agreement did not fully comply with the requirements of the Fair Work Act. The court identified several provisions that were not in line with minimum entitlements and expressed concerns about the fairness of certain conditions. The Commission emphasised that the agreement had not been genuinely negotiated and lacked sufficient procedural fairness, particularly regarding the ballot process for employee approval. Consequently, the application for approval of the Canossa Residential Services - QNMU Enterprise Agreement 2018 was dismissed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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