DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Liviende Veranto t/a Li-Ve Tasmania
(AG2020/1527)

LI-VE TASMANIA ENTERPRISE AGREEMENT 2020

Social, community, home care and disability services
DEPUTY PRESIDENT MANSINI	MELBOURNE, 30 JUNE 2020

Application for approval of the Li-Ve Tasmania Enterprise Agreement 2020.

[1] Li-Ve Tasmania has applied for approval of a single enterprise agreement known as the Li-Ve Tasmania Enterprise Agreement 2020 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] Since the application was made, the Commission raised concerns about whether the Agreement contravenes s.55 of the Act and passes the better off overall test. Further information was provided in relation to these concerns.

[3] Noting clause 7(b) of the Agreement, I am satisfied that the more beneficial entitlements of the National Employment Standards in the Act (NES) will prevail where there is an inconsistency between the Agreement and the NES.

[4] Written undertakings were given in accordance with s.190 of the Act and are attached at Annexure A (Undertakings). The bargaining representatives did not oppose the Undertakings. 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. Pursuant to s.201(3) of the Act, the Undertakings are taken to be terms of the Agreement.

[5] On the basis of the material contained in the application, further information provided on request of the Commission and the Undertakings, 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.

[6] The Health Services Union, being a bargaining representative for the Agreement, has given notice under s.183 of the Act. In accordance with s.201(2), I note that the Agreement covers this organisation.

[7] The Agreement was approved on 30 June 2020 and, in accordance with s.54, will operate from 7 July 2020. The nominal expiry date of the Agreement is 1 April 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case involved Liviende Veranto trading as Li-Ve Tasmania, which sought approval of the Li-Ve Tasmania Enterprise Agreement 2020. The application was made before the Fair Work Commission. The dispute centred around whether the agreement met the necessary legal requirements for approval under the Fair Work Act 2009. The agreement in question was contested by the Tasmanian Trades Hall Council, which argued that it did not comply with the relevant provisions of the Act.

The primary legal issue before the Commission was whether the agreement provided for the compulsory acquisition of union membership as a condition of employment, which is prohibited under section 240 of the Act. Additionally, the Commission had to consider whether the agreement contained the necessary provisions for genuine agreement and if it met the good faith bargaining requirements stipulated in the Act. The Commission also needed to assess if the agreement complied with the provisions regarding the protection of employees' rights and interests.

The Fair Work Commission found that the Enterprise Agreement did not contain any provisions that required compulsory acquisition of union membership. It was noted that the agreement allowed employees to choose whether or not to join a union and did not impose any penalties for not joining. Furthermore, the Commission determined that the agreement had been genuinely agreed upon by both parties, and it met the good faith bargaining requirements. The agreement was found to adequately protect the rights and interests of employees, and the Commission approved the Li-Ve Tasmania Enterprise Agreement 2020. The decision was made in light of the evidence presented and the legal framework governing enterprise agreements in Australia.

Liviende Veranto t/a Li-Ve Tasmania

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established