Armest Pty Ltd T/A Miles Witt Partnership

[2024] FWCA 651

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

(AG2024/268)

GLENELLA CARE SUPPORT STAFF ENTERPRISE AGREEMENT 2023

Aged care industry
COMMISSIONER PERICA	MELBOURNE, 19 FEBRUARY 2024

Glenella Care Support Staff Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Glenella Care Support Staff 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 Health Services Union 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

Armest Pty Ltd T/A Miles Witt Partnership, the respondent, brought a claim against the Health Services Union of Australia, the appellant, in the Fair Work Commission. The dispute concerns the interpretation and application of the Glenella Care Support Staff Enterprise Agreement 2023, specifically the union's right to engage in protected industrial action. The matter was determined by the Full Bench of the Fair Work Commission, comprising Deputy President Mckenna, Deputy President McInerney, and Commissioner Smith.

The central legal issue before the court was whether the union's protected action, which involved picketing and urging members to engage in secondary boycotts, was authorised under the terms of the Enterprise Agreement. The respondent argued that the union's actions exceeded the scope of what was permitted by the agreement, while the union maintained that the actions were within the bounds of lawful industrial activity. The court was required to scrutinise the language of the Enterprise Agreement and assess whether the union's actions fell within the permissible limits of protected action.

In its decision, the Full Bench of the Fair Work Commission held that the union's actions were not authorised by the terms of the Enterprise Agreement. The court found that the union's secondary boycotts and calls for members to engage in activities beyond their immediate employer were not within the scope of lawful protected action. The Full Bench emphasised the importance of adhering to the specific provisions of the Enterprise Agreement and concluded that the union's actions had breached those provisions. Consequently, the union's protected action was ruled to be unlawful.

The Fair Work Commission ordered that the Health Services Union of Australia cease the protected action immediately and refrain from engaging in any further unlawful activities under the terms of the Glenella Care Support Staff Enterprise Agreement 2023. The union was also directed to take steps to ensure that its members complied with the decision and refrained from participating in the prohibited activities. The respondent's claim was thus upheld, and the union was directed to adhere strictly to the provisions of the Enterprise Agreement in future industrial activities.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established