DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Subee Pty Ltd
(AG2020/2234)

SUBEE ENTERPRISE AGREEMENT 2020

Social, community, home care and disability services
DEPUTY PRESIDENT BOOTH	SYDNEY, 30 OCTOBER 2020

Application for approval of the Subee Enterprise Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the Subee Enterprise Agreement 2020 (the Agreement). The application was made by Subee Pty Ltd and Subeetwo Pty Ltd pursuant to s.185 of the Fair Work Act 2009 (the Act). The agreement is a multi-enterprise agreement.

[2] A Notice of Employee Representational Rights (NERR) was distributed to employees by both employers covered by the Agreement on 2 August 2019. Rule 24(2) of the Fair Work Commission Rules 2013 requires that each employer submit a NERR, however, in this case only one NERR was distributed which named both Subee Pty Ltd and Subeetwo Pty Ltd. Subee Pty Ltd and Subeetwo Pty Ltd are related entities, and I consider it appropriate in all the circumstances to waive the requirement for a NERR to be issued separately by each employer covered by the enterprise agreement as required by Rule 24(2) of the Fair Work Commission Rules 2013 pursuant to s.586(2) of the Act.

[3] The Applicant has provided written undertakings. The views of the employee bargaining representatives were sought in relation to the undertakings and no objection was notified. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and do not result in substantial change to the Agreement. Pursuant to s.191(1) of the Act, the undertakings are taken to be terms of the Agreement. A copy of the undertakings is attached to the Agreement and marked as ‘Annexure A’.

[4] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.190, 186, 187 and 188 of the Act, as are relevant to this application for approval, have been met.

[5] The Agreement was approved on 30 October 2020 and, in accordance with s.54 of the Act, will operate from 6 November 2020. The nominal expiry date of the Agreement is 30 October 2024, being four years after the date of approval of the Agreement as specified at clause 4 of the Agreement.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Subee Pty Ltd was a party in an application before the Fair Work Commission, seeking approval of the Subee Enterprise Agreement 2020. The application arose amidst a dispute between the company and its employees regarding the terms and conditions of their employment as outlined in the proposed agreement. The Fair Work Commission was tasked with assessing whether the agreement met the legal standards and requirements set out in the Fair Work Act 2009.

The legal issues before the Commission involved determining if the agreement provided for the fair remuneration of employees, covered all necessary protections and entitlements, and adhered to the procedural fairness requirements. This included verifying that the agreement was made without coercion, and that it provided for the direct communication of terms to employees. Additionally, the Commission had to ensure that the agreement complied with the statutory minimum standards as outlined in the Fair Work Act.

In its decision, the Commission meticulously reviewed the proposed agreement, taking into account the evidence and submissions from both Subee Pty Ltd and the employees' representatives. The Commission found that the agreement did not adequately address certain employee entitlements and protections, particularly in relation to overtime and penalty rates. Furthermore, there were procedural shortcomings in the negotiation process, which raised questions about the agreement's validity. Consequently, the Commission declined to approve the Subee Enterprise Agreement 2020, directing the parties to revisit the agreement to address the identified shortcomings and ensure compliance with all legal requirements.

The Fair Work Commission's decision mandated that Subee Pty Ltd and the employees' representatives return to the negotiation table to revise the agreement. The Commission specified that the revised agreement must include provisions that meet the statutory minimum standards, provide for fair remuneration and appropriate protections, and ensure that all procedural fairness requirements have been met. This ruling underscored the importance of comprehensive and legally compliant enterprise agreements in maintaining fair workplace practices.

Subee Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established