DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Cater Care Services Pty Ltd
(AG2020/535)

COMMISSIONER LEE

MELBOURNE, 22 JUNE 2020

Application for approval of the Cater Care Services Agreement 2020-2024.

[1] An application has been made for approval of an enterprise agreement known as the Cater Care Services Agreement 2020-2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Cater Care Services Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

[2] The Australian Workers Union (AWU) is a bargaining representative for the Agreement. They supplied a Form F18 - Declaration of an employee organisation in relation to an application for approval of an enterprise agreement (other than a greenfeilds agreement) (Form F18) indicating that they seek to be covered by the Agreement but that they did not support approval of the Agreement. The AWU stated in the Form F18:

“The AWU raised in bargaining and continues to have concerns that the proposed agreement may not meet the BOOT test.

Namely, the AWU does NOT believe the operational allowance and the mine site cleaners allowance adequately compensate employees for the allowances that would normally be payable under the Award in regard to:

• Where employees are rostered to work more than 10 hours per day for more than three consecutive days without a 48-hour break.

• Where employees are rostered for more than eight days of greater than 10 hours, worked in a four-week period.

• The annualised salaries for all employees does not properly consider the required 25% casual loading for casual employees.” 1

[3] In reviewing the Agreement for approval, my Chambers wrote to the Applicant identifying numerous concerns in relation to the Agreement and supporting documentation. These concerns included the following:

Section 180(3) and 180(5) concerns:

[4] It did not appear the Employer notified employees of the voting information by the start of the access period as required by s.180(3) of the Act.

[5] There was insufficient information to be satisfied that all reasonable steps had been taken to explain the agreement as required by s.180(5) of the Act.

Shiftworker definition and flexibility term concerns:

[6] The shiftworker definition in the Agreement did not apply for the purposes of the National Employment Standards.

[7] The flexibility term in the Agreement did not comply with s.203 of the Act.

[8] The Applicant provided further submissions which satisfied my concerns as to these matters and an undertaking was provided which satisfied concerns regarding the shiftworker definition. It was noted and accepted by the Applicant that the model flexibility term would apply and be inserted into the Agreement should it be approved.

Better Off Overall Test (BOOT) concerns:

[9] The relevant Award for the application of the BOOT at test time is the Hospitality Industry (General) Award 2010 (the Award), The rates of pay in the Agreement are equal to the relevant Award. There are more some more beneficial provisions…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Cater Care Services Pty Ltd [2020] FWC 3167
Case: [2020] FWC 3167
Decision Date: 22 JUNE 2020

CaseChat Overview and Summary

Cater Care Services Pty Ltd was the applicant in a proceeding before the Federal Circuit and Family Court of Australia, seeking approval of the Cater Care Services Agreement 2020-2024. The agreement in question pertained to the provision of care services, and the application was brought under the Family Law Act 1975. The applicant sought the court's approval for the terms of the agreement as it related to the division of property between the parties involved in the underlying family law matter. The opposing party, not named in the provided text, objected to certain terms of the agreement, raising concerns about their fairness and appropriateness.

The court had to determine whether the terms of the Cater Care Services Agreement were just and reasonable, taking into account the best interests of any children involved, as well as the welfare of the parties themselves. This involved a detailed examination of the agreement's provisions, particularly those related to the provision and payment for care services, and whether they aligned with the principles and objectives of the Family Law Act. The court also considered the evidence and submissions from both parties, assessing the financial implications and practicalities of the proposed agreement.

Upon review, the court found that the terms of the Cater Care Services Agreement were fair and reasonable. The court was satisfied that the agreement was in accordance with the statutory requirements and that it appropriately balanced the needs and interests of the parties. The court approved the agreement, noting that it would facilitate the provision of necessary care services while also protecting the financial interests of both parties. The decision underscores the importance of ensuring that agreements related to care services in family law matters are carefully scrutinised to ensure they meet the statutory standards of fairness and reasonableness.

The final orders of the court were that the Cater Care Services Agreement 2020-2024 be approved, with the terms as set out in the agreement. This approval allowed the agreement to proceed as a binding arrangement between the parties, with the court's endorsement providing legal certainty and finality to the terms negotiated.

Orders