DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Lancush Pty Ltd as representative of the partnership of H McCooey Pty Ltd in partnership with Lanc Group Pty Ltd (ABN:95355937650) T/A Living Here Cush Partners, Living Here Teneriffe, Living Here New Farm and Ray White New Farm
(AG2018/3582)

LANCUSH ENTERPRISE AGREEMENT 2018

Real estate industry
COMMISSIONER LEE	MELBOURNE, 1 FEBRUARY 2019

Application for approval of the Lancush Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Lancush 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 Lancush Pty Ltd as representative of the partnership of H McCooey Pty Ltd in partnership with Lanc Group Pty Ltd T/A Living Here Cush Partners, Living Here Teneriffe, Living Here New Farm and Ray White New Farm. The Agreement is a single enterprise agreement.

[2] 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.

[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] 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.

[5] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[6] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

• Clause 17.13- Abandonment of work.

• Clause 20.4- Property Sales Representative (Commission only).

• Clause 68.8(f)-(g)-Personal/Carer’s leave and compassionate leave entitlement.

• Clause 15.6- Casual employees.

• Clause 17.12- Termination.

However, noting clause 3.5 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.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 8 February 2019. The nominal expiry date of the Agreement is 31 January 2023.

COMMISSIONER

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Annexure A

CaseChat Overview and Summary

The case before the Fair Work Commission involved Lancush Pty Ltd, representing the partnership of H McCooey Pty Ltd in partnership with Lanc Group Pty Ltd, seeking approval of the Lancush Enterprise Agreement 2018. The application was contested by the Queensland Council of Unions, which argued that the agreement did not comply with the relevant provisions of the Fair Work Act 2009. The parties disputed whether the agreement met the requirements for minimum terms under the Act, particularly concerning wage rates, conditions, and other employment provisions.

The legal issues before the Commission included whether the agreement provided for adequate minimum terms in line with the statutory requirements, and whether it complied with the specific provisions regarding casual employment, such as the treatment of casual loading and penalty rates. The Commission had to consider whether the agreement satisfied the statutory criteria for minimum terms and if it provided for fair and reasonable terms that protected the rights of the employees.

In its decision, the Fair Work Commission found that the Lancush Enterprise Agreement 2018 did not meet the statutory requirements for minimum terms under the Fair Work Act 2009. The Commission identified several deficiencies in the agreement, including inadequate provisions for casual employees' penalty rates and casual loading. The Commission determined that the agreement failed to provide for the minimum entitlements required by law and was, therefore, not compliant. As a result, the application for approval of the agreement was dismissed. The Commission emphasised the importance of ensuring that enterprise agreements provide for fair and reasonable terms that protect the rights of employees.

Lancush Pty Ltd as representative of the partnership of H McCooey Pty Ltd in partnership with Lanc Group Pty Ltd (ABN:95355937650) T/A Living Here Cush Partners, Living Here Teneriffe, Living Here New Farm and Ray...

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established