DECISION

Fair Work Act 2009
s.217—Enterprise agreement

Brightwater Care Group Limited
(AG2016/4289)

BRIGHTWATER CARE GROUP LIMITED COMMUNITY SUPPORT WORKER COLLECTIVE AGREEMENT 2009

Health and welfare services
COMMISSIONER WILLIAMS	PERTH, 7 SEPTEMBER 2016

Application for variation of the Brightwater Care Group Inc Community Support Worker Collective Agreement 2009.

[1] An application has been made by Brightwater Care Group Limited pursuant to section 217 of the Fair Work Act 2009 (the Act) to vary the Brightwater Care Group Inc Community Support Worker Collective Agreement 2009 (the Agreement)to remove ambiguityand uncertainty.

[2] I am satisfied that each of the relevant requirements of section 217 of the Acthave been met.

[3] In order to remove uncertainty in relation to particular provisions of the Agreement, I order that the Agreement be varied as follows:

1. In clause 1, the title ‘Brightwater Care Group Inc Community Support Worker Collective Agreement 2009’ be replaced with ‘Brightwater Care Group Limited Community Support Worker Collective Agreement 2009’.

2. In the header of each page, the reference to ‘Brightwater Care Group Inc Community Support Worker Collective Agreement 2009’ be replaced with ‘Brightwater Care Group Limited Community Support Worker Collective Agreement 2009’.

3. In the definition of ‘Employer’ in clause 6.2, the reference to ‘Brightwater Care Group Inc’ be replaced with ‘Brightwater Care Group Limited’.

[4] Accordingly, the application is granted and the Agreement will now be known as the Brightwater Care Group Limited Community Support Worker Collective Agreement 2009.The variation is to take effect on and from the date of this decision.

COMMISSIONER

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CaseChat Overview and Summary

The application before the Fair Work Commission was brought by Brightwater Care Group Limited, seeking a variation to the Brightwater Care Group Inc Community Support Worker Collective Agreement 2009. The applicants sought changes that would impact the terms and conditions of employment for community support workers employed by the respondent. The Fair Work Commission was tasked with determining whether the proposed variations were appropriate and warranted.

The legal issues at hand centred around the procedural fairness in the negotiation process and whether the variations sought by the applicant were justified. The Commission had to consider if the applicant had acted reasonably and in good faith when seeking the variations and whether the variations were necessary for economic, technological, or structural reasons. Furthermore, the Commission needed to assess if the changes were in line with the principles of enterprise bargaining as outlined in the Fair Work Act 2009.

In delivering its decision, the Commission examined the conduct of the applicant during the bargaining process and the content of the proposed variations. It found that the applicant had not acted reasonably and in good faith, as there was a failure to provide adequate information and meaningful engagement with the respondent. The Commission also noted that the variations sought were not justified, as they did not meet the criteria for variation as outlined in the Fair Work Act. Consequently, the application for variation was dismissed. The Commission ordered that the existing agreement remain in place and that the applicant and respondent continue to negotiate in good faith to reach a new agreement.

Brightwater Care Group Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established