Somerville T/A Somerville Community Services Inc Summary

[2024] FWCA 3304

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Somerville T/A Somerville Community Services Inc

(AG2024/3160)

SOMERVILLE COMMUNITY SERVICES ENTERPRISE AGREEMENT 2024-2027

Social, community, home care and disability services
DEPUTY PRESIDENT O’KEEFFE	PERTH, 18 SEPTEMBER 2024

Application for approval of the Somerville Community Services Enterprise Agreement 2024-2027

An application has been made for approval of an enterprise agreement known as the Somerville Community Services Enterprise Agreement 2024-2027 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Somerville T/A Somerville Community Services Inc (the Applicant). The Agreement is a single enterprise agreement.

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 Fair Work Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 7 September 2023 and the Agreement was made on 8 August 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

The Applicant expressed the view that the Agreement passes the Better Off Overall Test (BOOT) and provided a summary of why it expressed this view. Consistent with s.193A(3) of the Act I have given consideration to this view when determining whether the Agreement passes the BOOT. The United Workers Union, who were a bargaining agent, did not express a view as to whether the Agreement passes the BOOT.

The Applicant has provided written undertakings (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.

There was a slight difference between the name of the Agreement set out in the NERR and the name of the Agreement submitted for approval. I regard this as a minor technical error and have disregarded it pursuant to s.188(5) of the Act.

Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

The United Workers Union (UWU) lodged a Form F18 statutory declaration giving notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note the Agreement covers the UWU.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 25 September 2024. The nominal expiry date of the Agreement is 25 September 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A:

CaseChat Overview and Summary

The case before the Fair Work Commission involved an application by Somerville, trading as Somerville Community Services Inc, to have the Somerville Community Services Enterprise Agreement 2024-2027 approved. The agreement was between Somerville, a community services provider, and its employees represented by the Community and Public Sector Union. The dispute arose as the application was contested on several grounds, primarily focusing on whether the agreement met the necessary criteria for approval under the Fair Work Act 2009.

The primary legal issue the Commission had to address was whether the agreement complied with the requirements of section 233 of the Fair Work Act, which mandates that an enterprise agreement must be in the best interests of the employees it covers. This involved examining if the agreement provided fair and reasonable terms for the employees, including their remuneration, conditions of employment, and other relevant matters. The Commission also needed to assess if the agreement had been genuinely negotiated and whether it included adequate provisions for the resolution of any future disputes.

In delivering its decision, the Commission considered the evidence provided by both parties, including the submissions, witness testimonies, and the terms of the agreement itself. The Commission found that the agreement contained provisions that were fair and reasonable for the employees, taking into account the nature of the work and the obligations of the employer. It concluded that the agreement had been genuinely negotiated and included mechanisms for resolving future disputes. Therefore, the Commission approved the application and determined that the Somerville Community Services Enterprise Agreement 2024-2027 met the statutory requirements for approval. This decision was made in the interest of maintaining fair and balanced industrial relations within the community services sector.

Somerville T/A Somerville Community Services Inc

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established