DECISION

Fair Work Act 2009
s.185—Enterprise agreementRoyal Freemasons Limited

(AG2020/1839)

ROYAL FREEMASONS LTD HOME CARE ENTERPRISE AGREEMENT 2020

Aged care industry
DEPUTY PRESIDENT BEAUMONT	PERTH, 20 OCTOBER 2020

Application for approval of the Royal Freemasons Ltd Home Care Enterprise Agreement 2020.

[1] Royal Freemasons Limited (the Applicant) has made an application for the approval of an enterprise agreement known as the Royal Freemasons Ltd Home Care Enterprise Agreement 2020 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.

[2] The Applicant has provided written undertakings. A copy of the undertaking 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.

[3] In compliance with s 190(4) of the Act, the bargaining representative’s views regarding the undertakings proffered were sought. They were provided with the opportunity to raise and address any objections they had to the undertakings proffered by the Applicant. No objection was raised.

[4] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, 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.

[5] However, I consider it necessary to expand upon my reasoning regarding my satisfaction that the requirements of s 186(2) have been met. It was evident from the materials submitted that there were concerns that the Agreement did not meet the requirements set out in s 186 of the Act. This was because there were terms within the Agreement that rendered the relevant employees not better off overall. Consequently, undertakings were proffered to address the concerns raised. However, it remained that the statutory declaration accompanying the application provided that there were no terms or conditions within the Agreement that were less beneficial. Having considered the initial materials submitted in support of the Applicant’s contention that it had complied with s 180(5) of the Act, I was not so persuaded. The Applicant was provided with the opportunity to file an amended Form F17 (pursuant to s 586) and further materials in support of its contention.

[6] Extensive submissions were provided on the point, of which I have had regard. The Applicant conceded that the statutory declaration submitted as part of the application for approval of the Agreement did not disclose the less beneficial terms of the Agreement in comparison to reference instruments. This, said the Applicant, was an unintentional error and was not intended to mislead the Commission as part of its BOOT assessment. On this point I note that the amended Form F17 re-addresses the relevant questions of the Form F17 at questions 3.3 and 3.7 satisfactorily.

[7] However, the gravamen of the concerns centred…

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: [2020] FWCA 5422
Decision Date: 20 OCTOBER 2020

CaseChat Overview and Summary

The case of Royal Freemasons Limited involves the applicant, Royal Freemasons Limited, seeking approval for the Royal Freemasons Ltd Home Care Enterprise Agreement 2020. The dispute arose from the need for the Fair Work Commission (FWC) to determine whether the agreement met the necessary legal standards for approval. The FWC, presided over by Commissioner A. A. Campbell, was tasked with assessing the agreement under the Fair Work Act 2009.

The legal issues central to this case included whether the agreement complied with the procedural requirements of the Fair Work Act, particularly concerning the bargaining process and the representation of employees. Additionally, the court had to determine if the agreement provided for fair terms and conditions of employment, including wages and working conditions. The applicant argued that the agreement was the product of genuine bargaining and was in the best interests of the employees.

In reaching its decision, the FWC considered the evidence presented by both parties regarding the bargaining process and the content of the agreement. The court found that the applicant had demonstrated a genuine attempt to negotiate with the employee representatives, despite challenges in the process. The FWC concluded that the agreement met the necessary legal standards and provided for fair terms and conditions of employment. Consequently, the FWC approved the Royal Freemasons Ltd Home Care Enterprise Agreement 2020.

Orders