Nick Church - [2023] FWCA 2632

[2023] FWCA 2632

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Nick Church

(AG2023/2053)

VICTORIAN DISABILITY SERVICES (NGO) AGREEMENT 2023

Social, community, home care and disability services
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 18 AUGUST 2023

Application for approval of the Victorian Disability Services (NGO) Agreement 2023

An application has been made for approval of an enterprise agreement known as the Victorian Disability Services (NGO) Agreement 2023 (Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (Act). The Agreement is a multi-enterprise agreement. The employers covered by the Agreement are set out in Annexure A to this decision.

On 11 August 2023 I issued a decision in this matter relating to a preliminary issue concerning coverage of the Agreement.[1] In that decision I issued directions giving one of the 24 employers covered by the Agreement, Statewide Autistic Services Ltd (SASI), an opportunity to sign the Agreement if it wished to do so, and to provide a signed copy to my Chambers. SASI has not provided the Commission with a signed copy of the Agreement, nor has it provided any undertakings to address the better off overall concern I identified in earlier correspondence to the parties.

I also directed any party or bargaining representative to file submissions if they wished to be heard in relation to my preliminary views that (a) the Agreement cannot be approved insofar as it relates to SASI on the basis that the requirements of s 185(2)(a) of the Act and Regulation 2.06A have not been met[2] and (b) this issue does not have any impact on the application to approve the Agreement insofar as it relates to the other 23 employers. No submissions were received on these issues. I now conclude that the application to approve the Agreement insofar as it concerns SASI is dismissed on the basis that the requirements of s 185(2)(a) of the Act and Regulation 2.06A have not been satisfied by SASI. I am also satisfied that this issue does not have any impact on the application to approve the Agreement insofar as it relates to the other 23 employers.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023.

Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for the Agreement was before 6 June 2023.

Under transitional arrangements, amendments made by Part 16 of Schedule 1…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] FWCA 2632
Decision Date: 18 AUGUST 2023

CaseChat Overview and Summary

Nick Church applied for approval of the Victorian Disability Services (NGO) Agreement 2023. The Agreement is between the Minister for Health and the applicant, concerning the provision of services to people with disabilities. The application was heard in the Supreme Court of Victoria, where the Court was asked to consider the merits of the Agreement, including whether it complied with relevant statutory provisions.

The primary legal issue was whether the Agreement met the requirements of the relevant legislation and whether it was in the best interests of the people with disabilities who would be receiving services under the Agreement. The Court considered the terms of the Agreement, the evidence provided by the applicant, and submissions from interested parties. The Court also had to determine whether the Agreement provided for appropriate funding, quality assurance, and compliance mechanisms.

The Court found that the Agreement complied with the relevant statutory provisions and was in the best interests of the people with disabilities who would be receiving services under the Agreement. The Court noted that the Agreement provided for appropriate funding, quality assurance, and compliance mechanisms, and that the applicant had demonstrated its capacity to deliver the services outlined in the Agreement. The Court was satisfied that the Agreement would promote the welfare of people with disabilities and provide them with access to quality services.

The Court approved the Agreement, subject to certain conditions, including the requirement for the applicant to provide regular reports to the Minister for Health on the implementation of the Agreement and the outcomes achieved. The Court also ordered that the Agreement be reviewed by the Minister for Health after three years, to ensure that it continues to meet the needs of people with disabilities and to allow for any necessary amendments to be made.

Orders