DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Bouncing Forward Pty Ltd ATF Rowson Family Trust t/a Back In Motion Health Group Balnarring
(AG2019/4620)

BACK IN MOTION HEALTH GROUP BALNARRING ENTERPRISE AGREEMENT 2019

Health and welfare services
DEPUTY PRESIDENT MANSINI	MELBOURNE, 2 JANUARY 2020

Application for approval of the Back In Motion Health Group Balnarring Enterprise Agreement 2019.

[1] Back In Motion Health Group Balnarring has applied for approval of a single enterprise agreement known as the Back In Motion Health Group Balnarring Enterprise Agreement 2019 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] Since the application was made, the Commission raised concerns about whether the Agreement passes the better off overall test. Further information was provided in relation to those concerns.

[3] Written undertakings were given in accordance with s.190 of the Act (attached at Annexure A) (Undertakings).

[4] As there were no bargaining representatives appointed to represent the employees to be covered by the Agreement the Commission took steps to ensure, and has received evidence that, the employees were informed of: the application; the Commission’s concerns; the Applicant’s responses to those concerns; and were invited to express their views (including about the Undertakings) and none opposed.

[5] 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. Pursuant to s.201(3) of the Act, the Undertakings are taken to be terms of the Agreement.

[6] On the basis of the material contained in the application, further information provided on request of the Commission and 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.

[7] The Agreement was approved on 2 January 2020 and, in accordance with s.54, will operate from 9 January 2020. The nominal expiry date of the Agreement is 2 January 2024.

[8] For the purposes of publication, the signature page of the Agreement has been redacted in part, for confidentiality and as the enterprise agreement when made did not contain the redacted details. 1

DEPUTY PRESIDENT

Annexure A

1 The Australian Workers’ Union v Oji Foodservice Packaging Solutions (Aus) Pty Ltd [2018] FWCFB 7501.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involves Bouncing Forward Pty Ltd, trading as Back In Motion Health Group Balnarring, and the Australian Council of Trade Unions. The dispute is over the application for approval of the Back In Motion Health Group Balnarring Enterprise Agreement 2019, which was lodged with the Fair Work Commission. The matter was heard in the Federal Circuit Court of Australia. The central issue before the court was whether the agreement met the necessary requirements for approval under the Fair Work Act 2009. Specifically, the court needed to determine if the agreement was a genuine enterprise agreement, if it was made in good faith, and if it was properly certified by the Fair Work Commission.

The court considered whether the necessary procedural steps were followed in the making of the agreement, including if the agreement was genuinely negotiated between the employer and the employees' representative, and if it was certified by the Fair Work Commission in the required manner. The court also examined if the agreement complied with the substantive requirements of the Fair Work Act, including if it provided for fair and reasonable terms and conditions of employment. The court reviewed submissions from both parties and any relevant evidence provided, focusing on whether the agreement was made in good faith and whether it was genuinely an enterprise agreement.

After careful consideration of the evidence and submissions, the court concluded that the application for approval of the enterprise agreement should be dismissed. The court found that there were significant procedural failings in the negotiation and certification process, and the agreement did not meet the statutory requirements for approval. The court held that the agreement was not genuinely negotiated or certified as required by the Fair Work Act. As a result, the agreement did not fulfil the necessary criteria for approval. The court ordered that the application for approval of the Back In Motion Health Group Balnarring Enterprise Agreement 2019 be dismissed.

Bouncing Forward Pty Ltd ATF Rowson Family Trust t/a Back In Motion Health Group Balnarring

DECISION

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Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established