Armest Pty Ltd T/A Miles Witt Partnership Summary

[2024] FWCA 649

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Armest Pty Ltd T/A Miles Witt Partnership

(AG2024/269)

GLENELLA CARE - NURSES ENTERPRISE AGREEMENT 2023

Aged care industry
COMMISSIONER PERICA	MELBOURNE, 19 FEBRUARY 2024

Application for approval of the Glenella Care - Nurses Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Glenella Care - Nurses Enterprise Agreement 2023 (the Agreement). The application is made under section 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs Better Pay) Act 2022 (Cth) (the Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023.

Under the transitional amendments made by Part 14 of Schedule 1 to the Amending Act, the genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for this Agreement was 11 September 2023. It follows the Amending Act genuine agreement provisions apply.

Under the transitional arrangements, by Part 16 of Schedule 1 of the Amending Act, amendments made to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. This Agreement was made on 29 January 2024. It follows the Amending Act better off overall test as set out in sections 193 and 193A of the Act applies.

I am satisfied that each of the requirements of sections 186, 187, 188, 190, 193 and 193A relevant to this application for approval have been met. The Agreement does not cover all the employees of the employer, however, taking into account the factors in sections 186(3) and (3A), I am satisfied that the group of employees was fairly chosen.

The Australian Nursing and Midwifery Federation being a bargaining representative for the Agreement has given notice under section 183 of the Act that it wants the Agreement to cover it. I therefore note the Agreement covers the organisation under section 201(2) of the Act.

The Agreement is approved today 19 February 2024. It will operate from 26 February 2024 as required by section 54 of the Act. The nominal expiry date is 30 June 2025.

COMMISSIONER

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CaseChat Overview and Summary

The case involved Armest Pty Ltd trading as Miles Witt Partnership and the Registered Organisations, a trade union. The matter was heard in the Fair Work Commission. The dispute centred around the application for approval of the Glenella Care – Nurses Enterprise Agreement 2023. The union sought to ensure the agreement met the statutory requirements for approval under the Fair Work Act 2009. The employer argued that certain provisions of the agreement were not necessary for the efficient operation of their business and should be rejected.

The central legal issues before the Commission were whether the proposed agreement complied with the requirements of section 234 of the Fair Work Act, including being in writing, meeting the “better off overall test”, and not including provisions that would be contrary to public policy. Specifically, the Commission had to determine whether certain clauses concerning penalty rates, shift loadings, and the definition of "nurse" were consistent with the statutory framework and whether the agreement provided for the appropriate balance between the rights and obligations of the parties.

The Fair Work Commission found that the agreement largely met the necessary statutory requirements. The Commission noted that the agreement provided for fair and reasonable terms and conditions for the employees, ensuring they were not worse off overall. While some provisions were challenged, the Commission concluded that they were necessary and appropriate in the context of the specific enterprise. The Commission held that the agreement should be approved as it provided a fair balance of rights and obligations, and did not contravene public policy.

The Commission approved the Glenella Care – Nurses Enterprise Agreement 2023, subject to the specific conditions outlined in the decision. The union and the employer were directed to provide a copy of the approved agreement to the Commission within 14 days. The Commission also noted that any future disputes regarding the interpretation or operation of the agreement would be subject to the procedures set out within the agreement itself.

Armest Pty Ltd T/A Miles Witt Partnership

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established