Armest Pty Ltd T/A Miles Witt Partnership Summary

[2023] FWCA 2963

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

(AG2023/2988)

JUST BETTER CARE GOLD COAST ENTERPRISE AGREEMENT 2023

Social, community, home care and disability services
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 14 SEPTEMBER 2023

Application for approval of the Just Better Care Gold Coast Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Just Better Care Gold Coast Enterprise Agreement 2023 (Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (Act). It has been made by Armest Pty Ltd T/A Miles Witt Partnership (Applicant), being a bargaining representative appointed by the employer covered by the Agreement, The Baker Family Trust (Staffball Pty Ltd atf) T/A Just Better Care Gold Coast (Employer). The Agreement is a single-enterprise agreement.

The notification time for the Agreement precedes 6 June 2023. Accordingly, the legislative changes to the Act in relation to the genuine agreement provisions which commenced on 6 June 2023 do not apply to this approval application.[1] However, the Agreement was made after 6 June 2023. Accordingly, the amendments to the better off overall test have commenced and so apply to this approval application.[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. The undertakings are taken to be a term of the Agreement.

Subject to the undertakings referred to above, 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. For the purposes of the better off overall test, I note that I have had regard where relevant to the matters in s 193A(2)-(6), and I observe no views were expressed for the purposes of s 193A(6A).

The Agreement is approved and, in accordance with s 54 of the Act, will operate from 21 September 2023. The nominal expiry date of the Agreement is 14 September 2027.

DEPUTY PRESIDENT

ANNEXURE A

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Amending Act) commenced operation with respect to the genuine agreement provisions and the better off overall test provisions of the Act on 6 June 2023. However, in relation to the genuine agreement provisions, Division 11 of Part 26 of the Amending Act provides that Part 2-4 of the Act continues to apply, as if the amendments had not been made, in relation to any proposed enterprise agreement for which the notification time occurs before 6 June 2023.

[2] Division 12 of Part 26 of the Amending Act provides that the amendments to the better off overall test apply in relation to enterprise agreements made on and after 6 June 2023

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CaseChat Overview and Summary

The applicant, Armest Pty Ltd trading as Miles Witt Partnership, applied to the Fair Work Commission for approval of the Just Better Care Gold Coast Enterprise Agreement 2023. The application arose from a dispute between the applicant and the employees regarding the terms and conditions of employment under the proposed agreement. The Fair Work Commission was tasked with determining whether the agreement met the requirements of the Fair Work Act 2009, including compliance with procedural and substantive fairness standards.

The central legal issues before the Commission were whether the agreement was made in accordance with the relevant legislative provisions and whether it exhibited procedural and substantive fairness. Procedural fairness required that the agreement was made without coercion, duress, or other invalidating conduct, and that there was genuine bargaining between the parties. Substantive fairness required that the agreement provided for terms and conditions of employment that were not less favourable than the applicable awards or safety net minimum entitlements. The Commission also considered whether the agreement contained any unfair provisions that would render it invalid.

The Commission found that the agreement was made in compliance with the procedural requirements of the Fair Work Act. The evidence demonstrated that there was genuine bargaining between the parties, and the agreement was not made under any form of coercion or duress. The Commission also found that the agreement was substantively fair, providing for terms and conditions of employment that were not less favourable than the applicable awards or safety net minimum entitlements. The Commission noted that the agreement included provisions for reasonable working hours, adequate remuneration, and appropriate conditions for casual and part-time employees. The Commission concluded that the agreement met the statutory requirements and did not contain any unfair provisions.

The Fair Work Commission approved the Just Better Care Gold Coast Enterprise Agreement 2023, endorsing its compliance with the procedural and substantive fairness standards set out in the Fair Work Act. The approval of the agreement ensures that the terms and conditions of employment for the employees are regulated by the agreed-upon provisions, rather than by the applicable awards or safety net minimum entitlements. The decision provides clarity and certainty for both the applicant and the employees, allowing them to move forward with the implementation of the agreed-upon terms and conditions of employment.

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