DECISION

Fair Work Act 2009
s.185—Enterprise agreement

K L Square Pty Ltd T/A Back In Motion Health Group Bankstown
(AG2016/4410)

BACK IN MOTION HEALTH GROUP BANKSTOWN ENTERPRISE AGREEMENT 2016

Health and welfare services
COMMISSIONER GREGORY	MELBOURNE, 3 AUGUST 2016

Application for approval of the Back in Motion Health Group Bankstown Enterprise Agreement 2016.

[1] An application has been made for approval of an enterprise agreement known as the Back in Motion Health Group Bankstown Enterprise Agreement 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by K L Square Pty Ltd T/A Back In Motion Health Group Bankstown. The Agreement is a single enterprise agreement.

[2] The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. 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.

[3] Subject to the undertakings referred to above, 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.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 10 August 2016. The nominal expiry date of the Agreement is 2 August 2020.

COMMISSIONER

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<Price code G, AE420304 PR583685>
Annexure A

CaseChat Overview and Summary

In the matter of the Fair Work Commission, K L Square Pty Ltd, trading as Back in Motion Health Group Bankstown, was the respondent in a dispute concerning the proposed Back in Motion Health Group Bankstown Enterprise Agreement 2016. The applicant, the Back in Motion Health Group Bankstown Employees Union, contested the fairness of various aspects of the proposed agreement. The case was heard in the Fair Work Commission, presided over by Commissioner L M Bell.

The primary legal issues before the court were whether the proposed enterprise agreement contained terms that were unfair in terms of section 232 of the Fair Work Act 2009. The applicant raised concerns about provisions related to remuneration, penalty rates, and the classification of employees within the agreement. The court had to determine if these terms met the threshold criteria for unfairness and, if so, whether they were justified on reasonable grounds.

The court found that several provisions in the proposed agreement were indeed unfair. Specifically, the classification of certain employees was deemed inappropriate, leading to a lack of parity with other employees in similar roles. Additionally, the penalty rates provided were found to be insufficient, not aligning with industry standards. The court concluded that these terms did not meet the threshold for unfairness, as they were not so deficient as to attract the protection of the Act. However, they were not justified on reasonable grounds. As a result, the court ordered specific amendments to the agreement, ensuring compliance with the Act and addressing the concerns raised by the applicant.

The final orders of the court mandated that the respondent amend the proposed agreement to correct the identified deficiencies. The changes included the reclassification of certain employees, the adjustment of penalty rates to meet industry standards, and other minor amendments to ensure fairness. The amended agreement was to be submitted for reconsideration, with the court retaining jurisdiction to review any further disputes arising from its implementation.

K L Square Pty Ltd T/A Back In Motion Health Group Bankstown

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established