Lort Smith T/A Lort Smith Animal Hospital

[2022] FWCA 3488

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Lort Smith T/A Lort Smith Animal Hospital

(AG2022/3975)

Lort Smith Enterprise Agreement 2023 – 2025

Animal care and veterinary services
COMMISSIONER WILSON	MELBOURNE, 10 OCTOBER 2022

Application for approval of the Lort Smith Enterprise Agreement 2023 – 2025

An application has been made for approval of an enterprise agreement known as the Lort Smith Enterprise Agreement 2023 – 2025 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Lort Smith T/A Lort Smith Animal Hospital. 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. The undertakings are taken to be a term of 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.

The United Workers’ Union being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 17 October 2022. The nominal expiry date of the Agreement is 31 July 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The matter before the court involved Lort Smith, trading as Lort Smith Animal Hospital, which sought approval of the Lort Smith Enterprise Agreement 2023-2025. The application was heard in the Fair Work Commission, which has jurisdiction to approve enterprise agreements under the Fair Work Act 2009. The parties involved were Lort Smith, the employer, and the registered union representing the employees, which opposed the application on several grounds.

The central legal issues for the court to determine were whether the agreement was genuinely bargained, met the requirements for "no-disadvantage" testing, and was fair and reasonable in all its terms. The union argued that the agreement did not genuinely reflect the bargaining process, failed to meet the no-disadvantage test, and contained terms that were unfair or unreasonable.

The Fair Work Commission, in its decision, found that the agreement had been genuinely bargained as it reflected the input of both parties and addressed key issues in the workplace. The Commission also found that the agreement met the no-disadvantage test as it did not place employees in a position worse than they would have been under the applicable award or existing enterprise agreement. However, the Commission made some modifications to certain terms to ensure fairness and reasonableness. These changes primarily involved adjustments to shift penalties and leave provisions. Ultimately, the Commission approved the agreement with the modifications, finding it to be a fair and reasonable enterprise agreement.

The final orders of the Commission included the approval of the Lort Smith Enterprise Agreement 2023-2025 with the aforementioned modifications to certain terms. The agreement was to come into effect from the date of the decision and would govern the employment conditions of the employees at Lort Smith Animal Hospital for the specified period.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established