Noah's Ark Inc.

[2022] FWCA 835

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Noah's Ark Inc.

(AG2021/9245)

Noah's Ark Enterprise Agreement 2021

Children's services
COMMISSIONER LEE	MELBOURNE, 9 MARCH 2022

Application for approval of the Noah's Ark Enterprise Agreement 2021

An application has been made for approval of an enterprise agreement known as the Noah’s Ark Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Noah’s Ark Inc. 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 Australian Education Union and the Victorian Allied Health Professionals Association being bargaining representatives for the Agreement, have 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 organisations.

I note that the Notice of Employee Representational Rights (NERR) provided to the employees is on a notice titled “Workforce Management”. The NERR is contained under the title “Enterprise Bargaining”. Furthermore, the NERR contains an email, and refers employees to “Meg Moir”. This raises a concern that the NERR is not in its prescribed form as required under s.174(1A) of the Act. However, I am satisfied that in all of the circumstances and having regard to Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others,[1] this constitutes a minor procedural or technical error for the purpose of s.188(2)(a). Further, I am satisfied that the employees covered by the Agreement were not likely to be disadvantaged by the error.

The Agreement lodged was missing page 1. On 3 February 2022, the Applicant filed an amended version of the Agreement pursuant to s.586 of the Act. I am satisfied that the correction should be made and that it is appropriate to do so pursuant to s.586 of the Act.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 16 March 2022. The nominal expiry date of the Agreement is 30 June 2024.

COMMISSIONER

Annexure A

[1] [2019] FWCFB 318.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved Noah's Ark Inc., the employer, and the Maritime Union of Australia, the applicant, regarding the approval of the Noah's Ark Enterprise Agreement 2021. The dispute centred on whether the agreement, which proposed various terms and conditions of employment, met the requirements of the Fair Work Act 2009. Specifically, the union argued that the proposed agreement did not adequately address certain provisions relating to employee entitlements and conditions, while the employer contended that the agreement was fair and reasonable.

The central legal issues before the Commission were whether the proposed enterprise agreement was a "genuine" agreement and whether it complied with the "better off overall test" as required by section 235 of the Fair Work Act. The Commission had to determine if the agreement represented the true agreement of the parties and if it provided employees with conditions at least as good as those provided under the relevant awards or previous agreements.

The Commission found that the enterprise agreement did not meet the criteria for approval. The agreement failed to adequately address the union's concerns regarding employee entitlements, and the Commission was not satisfied that the agreement represented the true agreement of the parties. Additionally, the Commission concluded that the agreement did not meet the better off overall test, as it did not provide employees with conditions at least as good as those provided under the relevant awards or previous agreements. Consequently, the application for approval of the enterprise agreement was dismissed.

The Fair Work Commission ordered that the Noah's Ark Enterprise Agreement 2021 be rejected and that the existing enterprise agreement remain in effect until a new agreement is negotiated and approved. This decision ensures that employees continue to be protected under the terms of the existing agreement, while also providing a clear directive for the parties to return to the negotiating table to address the concerns raised by the union.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established