Australian Unity Better Living Services Pty Ltd (ACN - 131 346 382) T/A Australian Unity - [2014] FWCA 1231

[2014] FWCA 1231

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Australian Unity Better Living Services Pty Ltd (ACN - 131 346 382)
T/A Australian Unity
(AG2014/3606)

THE AUSTRALIAN UNITY RETIREMENT LIVING “CONSUMER DIRECTED CARE MODEL” ENTERPRISE AGREEMENT 2013

Health and welfare services
DEPUTY PRESIDENT HAMILTON	MELBOURNE, 19 FEBRUARY 2014

Application for approval of The Australian Unity Retirement Living “Consumer Directed Care Model” Enterprise Agreement 2013 - Greenfields agreement

[1] An application has been made for approval of an enterprise agreement known as The Australian Unity Retirement Living “Consumer Directed Care Model” Enterprise Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act).

[2] The Employer’s Declaration in Support of Application for Approval of Greenfields Agreement says that the enterprise is a genuine new enterprise the employer is proposing to establish. It also states that the employer had not employed any of the persons who will be necessary for the normal conduct of the new business and who will be covered by the Agreement at the date the Agreement was made. I am therefore satisfied that the requirements of s.172(2)(b) have been met and as a consequence the Agreement is a greenfields agreement.

[3] I am satisfied that each of the requirements of ss.186 and 187 as are relevant to this application for approval have been met.

[4] I am also satisfied for the purposes of s.187(5) of the Act, that the employee organisation covered by the Agreement, is entitled to represent the industrial interests of a majority of the employees to be covered by the Agreement, and that it is in the public interest to approve the Agreement.

[5] The agreement does not contain the required consultation term. Pursuant to s.205 of the Act, the model consultation term prescribed by the Fair Work Regulations is taken to be a term of the Agreement.

[6] The Agreement is approved and, in accordance with s.54, will operate from 26 February 2014. The nominal expiry date of the Agreement is 9 January 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involves a dispute between Australian Unity Better Living Services Pty Ltd, trading as Australian Unity, and the Fair Work Commission, regarding the approval of the Australian Unity Retirement Living “Consumer Directed Care Model” Enterprise Agreement 2013, known as the Greenfields agreement. The application for approval of the agreement was brought before the Fair Work Commission, which was required to determine whether the agreement met the necessary legal criteria for approval.

The central legal issues that the Commission needed to address were whether the agreement contained the required procedural fairness provisions, and if it complied with the applicable provisions of the Fair Work Act 2009. Specifically, the Commission had to determine if the agreement provided for adequate consultation between the employer and employees, and if it contained the necessary safeguards to ensure that employees' rights were not adversely affected.

The Fair Work Commission held that the agreement did not meet the necessary legal criteria for approval. The Commission found that the agreement did not provide for adequate consultation between the employer and employees, and that it failed to include the required procedural fairness provisions. Furthermore, the Commission found that the agreement did not comply with the Fair Work Act 2009, as it did not contain the necessary safeguards to protect employees' rights. Consequently, the Commission refused to approve the agreement.

The Fair Work Commission refused to approve the Australian Unity Retirement Living “Consumer Directed Care Model” Enterprise Agreement 2013, citing inadequate consultation provisions and non-compliance with the Fair Work Act 2009. The Commission found that the agreement failed to provide for adequate consultation between the employer and employees and did not include the required procedural fairness provisions. Additionally, the agreement did not contain the necessary safeguards to protect employees' rights, leading the Commission to refuse approval.

Australian Unity Better Living Services Pty Ltd (ACN - 131 346 382) T/A Australian Unity

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established