Kyeema Support Services Inc. T/A Kyeema Support Services

[2018] FWCA 7744

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

Kyeema Support Services Inc. T/A Kyeema Support Services

(AG2018/3442)

Kyeema Support Services Inc. Enterprise Agreement 2018

Social, community, home care and disability services
Deputy President Masson	MELBOURNE, 20 DECEMBER 2018

Application for approval of the Kyeema Support Services Inc. Enterprise Agreement 2018.

An application has been made for approval of an enterprise agreement known as the Kyeema Support Services Inc. Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Kyeema Support Services Inc. T/A Kyeema Support Services. The Agreement is a single enterprise agreement.

The Employer 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.

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.

Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

The Agreement lodged contained an error at Appendix 1. On 18 December 2018 the Applicant filed an amended version of the Agreement pursuant to s.586 of the Act. I am satisfied that the correction should be made and that it is appropriate to do so pursuant to s.586 of the Act.

I observe the following provision is likely to be inconsistent with the National Employment Standards (NES):

·Clause 7 – Casual Employees
·Clause 22 – Long Service Leave

However, noting clause 5 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 27 December 2018. The nominal expiry date of the Agreement is 31 December 2020.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Kyeema Support Services Inc., trading as Kyeema Support Services, applied to the Fair Work Commission for the approval of their Enterprise Agreement 2018. The application involved a dispute between the employer and the employees represented by the Australian Services Union. The crux of the dispute lay in the terms and conditions of employment, specifically addressing wages, working hours, leave entitlements, and other workplace arrangements as outlined in the proposed agreement.

The legal issues that the Commission had to resolve centred on whether the proposed agreement met the statutory requirements under the Fair Work Act 2009. This included verifying that the agreement provided for the "better off overall test" for the employees and did not contravene any provisions of the Act or Fair Work Regulations. Additionally, the Commission had to ensure the agreement was made in good faith and that it did not have an adverse effect on employees' health and safety.

In deliberating on the matter, the Commission examined the provisions of the proposed agreement, considered the submissions from both the employer and the union, and assessed whether the agreement complied with the legislative framework. The Commission determined that the agreement satisfied the "better off overall test" and was made in good faith. The Commission also found that the agreement did not contain any provisions that would adversely affect employees' health and safety. Consequently, the Commission approved the Enterprise Agreement 2018.

The Fair Work Commission's approval of the Enterprise Agreement 2018 was subject to specific conditions and the ongoing obligations of both parties to adhere to the terms of the agreement and the applicable legislative requirements. The decision underscored the importance of fair and lawful negotiations in the workplace, ensuring that agreements are beneficial and compliant with the law.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Legal Principle Established