Lort Smith t/a Lort Smith Animal Hospital

[2021] FWCA 3480

[2021] FWCA 3480

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Lort Smith t/a Lort Smith Animal Hospital
(AG2021/5066)

LORT SMITH ENTERPRISE AGREEMENT 2019 – 2022

Animal care and veterinary services
DEPUTY PRESIDENT MANSINI	MELBOURNE, 22 JUNE 2021

Application for approval of the Lort Smith Enterprise Agreement 2019 - 2022.

[1] Lort Smith has applied for approval of a single enterprise agreement known as the Lort Smith Enterprise Agreement 2019 - 2022 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] The application was accompanied by a signature page that did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to waive an irregularity in the form or manner in which an application was made, and do so pursuant to s.586(b).

[3] Since the application was made, the Commission also raised concerns about whether the pre-approval requirements were met, the Agreement contravenes s.55 of the Act and passes the better off overall test. Further information was provided in relation to these concerns.

[4] The cohort of 224 employees identified on the Applicant’s statutory declaration as covered by the Agreement included a substantial number of casual employees. The Applicant provided further evidence to satisfy the Commission that:

a) all relevant employees, who were employed at the time of the access or voting periods and covered by the Agreement, were requested to vote; and
b) of the employees who were requested to vote, 36 (of 80) casual employees did not work during the access or voting periods, however even if this group had each cast a vote (which is not known) it would have been immaterial to the outcome. 1

[5] On the evidence before the Commission, I am satisfied that the impact of the Applicant requesting a broader than strictly eligible cohort of employees to vote was immaterial and does not prevent approval by the Commission.

[6] Noting clause 6 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.

[7] 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.

[8] On the basis of the material contained in the application, further evidence and 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.

[9] The United Workers’ 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.

[10] The Agreement was approved on 22 June 2021 and, in accordance with s.54, will operate from 29 June 2021. The nominal expiry date of the Agreement is 31 July 2022.

DEPUTY PRESIDENT

Annexure A

 1   See National Tertiary Education Industry Union v Swinburne University of Technology [2015] FCAFC 98.

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