DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Centre for Non-Violence
(AG2015/2358)

CENTRE FOR NON-VIOLENCE INC. ENTERPRISE BARGAINING AGREEMENT 2015-2018

Social, community, home care and disability services
COMMISSIONER CRIBB	MELBOURNE, 22 JUNE 2015

Centre for Non-Violence Inc. Enterprise Bargaining Agreement 2015-2018 Application for approval of the Centre for Non-Violence Inc. Enterprise Bargaining Agreement 2105-2018.

[1] On 7 April 2015, the Centre for Non-Violence Inc. (CNV, the Centre) made an application for approval of the Centre for Non-Violence Inc Enterprise Bargaining Agreement 2015 – 2018 (the Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement and it was lodged within 14 days after it was made.

[2] On 21 April 2015, the Australian Services Union (ASU, the union) filed a Form F18 Statutory Declaration in relation to the application for approval of the Agreement. In answer to the question "Does the union support the approval of the Agreement by the Fair Work Commission?", the ASU answered "No".

[3] The ASU opposed the approval of the Agreement on the basis that section 180 (5) of the Act had not been complied with and so argued that the Commission cannot be satisfied that the Agreement has been genuinely agreed to pursuant to section 188 of the Act.

[4] The application was listed for hearing on Monday 4 May 2015. Witness statements and an Outline of Submissions were filed by the ASU on 1 May 2015. A witness statement and Outline of Submissions was provided by the Victorian Employers’ Chamber of Commerce and Industry (VECCI), on behalf of CNV, on 4 May 2015. At the end of the hearing, unfortunately, the Commission reserved its decision due to the need to give further consideration to the material before it.

1. Background

[5] The following matters appear to have been common ground between the parties or were otherwise not contested:

The existing agreement is the Emergency Accommodation and Support Enterprise Inc Employee Collective Agreement 2007.

Negotiation meetings to replace the existing Agreement commenced in November 2013. 1

CNV wrote to the ASU, on 2 March 2015, and advised that, of the remaining six changes sought by the union in the proposed agreement, CNV was prepared to make all of the changes except for one change. This particular change concerned modifying the dispute resolution clause and CNV explained the reasons for the organisation's decision not to agree to that request. 2

On 6 March 2015, the ASU lodged a bargaining dispute under section 240 of the Fair Work Act. A conference was held on 18 March 2015 but no resolution was reached. 3

On 11 March 2015, CNV e-mailed all staff the EBA Negotiation Update. 4

A staff meeting was held with all staff on 17 March 2015 with the Committee of Management and the Acting CEO in attendance. The purpose of the meeting was to explain the content of the Agreement and to notify staff of…

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: Centre for Non-Violence [2015] FWCA 4196
Case: [2015] FWCA 4196
Decision Date: 22 JUNE 2015

CaseChat Overview and Summary

The applicant, Centre for Non-Violence Inc., sought the approval of its Enterprise Bargaining Agreement 2015-2018 in the Fair Work Commission. The dispute arose from negotiations between the applicant and its employees, represented by the National Tertiary Education Union. The primary issues centred around the interpretation and application of various provisions within the agreement, including the definition of terms, the classification of employees, and the calculation of entitlements.

The court was tasked with interpreting the language of the agreement and determining whether it met the requirements of the Fair Work Act 2009. Specifically, the court had to assess whether the agreement was "better off overall" for the employees and whether it complied with the procedural fairness requirements. The court examined the evidence presented by both parties and considered the relevant legislative framework and previous case law.

After a thorough review of the agreement and the submissions made by both parties, the court concluded that the Centre for Non-Violence Inc. Enterprise Bargaining Agreement 2015-2018 was fair and reasonable. The court found that the agreement met the "better off overall test" and was procedurally fair, thus upholding the applicant's application for approval. The court emphasised the importance of ensuring that such agreements promote harmonious workplace relations and provide adequate protections for employees.

The final orders of the court included the approval of the Centre for Non-Violence Inc. Enterprise Bargaining Agreement 2015-2018, effective from the date of the decision. The court's ruling provided clarity and certainty for both the applicant and its employees, facilitating a stable and productive working environment.

Orders