DECISION

Fair Work Act 2009
s.185—Enterprise agreement

The Northcott Society
(AG2021/3943)

NORTHCOTT ENTERPRISE AGREEMENT 2021 – 2023

Social, community, home care and disability services
COMMISSIONER WILSON	MELBOURNE, 5 JULY 2021

Application for approval of the Northcott Enterprise Agreement 2021 - 2023.

[1] In a decision dated 28 May 2021, I found that I could not be satisfied there was genuine agreement for the making of the Northcott Enterprise Agreement 2021 – 2023 (the Agreement) because of three errors identified in the decision (referred to as the First Decision). 1 I indicated in the decision that is was my preliminary view that each error was of the type that may be the subject of an exercise of discretion by the Commission under s.188(2) of the Fair Work Act 2009 (the Act).

[2] The same decision also found that otherwise the statutory criteria for approval of the agreement had been met, subject to receiving undertakings from the Applicant, The Northcott Society (Northcott) pursuant to s.190.

[3] The errors identified may be summarised in the following way:

1. In relation to up to 90 casual employees:

a. the possible failure to provide them with the information required by s.180(2) (referred to in this decision as the Information Provision Error);

b. the failure to include the employees in Northcott’s request under s.181 to the employees employed at the time who will be covered by the agreement to approve the agreement by voting for it (referred to as the Voting Request Error); and

2. An inaccuracy within Northcott’s explanatory materials on the subject of travel expenses and its assertion that a relevant State Award had no equivalent provisions (referred to as the Inaccurate Explanatory Materials Error).

[4] Each party was given an opportunity to provide submissions and other material about my preliminary view. Each of the Community and Public Sector Union (CPSU) and Northcott provided written submissions. Since no party sought to be heard on the subject these residual matters have been determined by me on the papers.

[5] Further each bargaining representative was invited to provide their views about the suitability of the undertaking submitted by Northcott in the course of the consideration of steps prior to the earlier decision. No bargaining representative expressed a view about the undertakings.

[6] The submissions provided by the CPSU contest whether the errors relating to the 90 casual employees are of the type for which a discretion may be exercised under s.188(2) however accept that the Inaccurate Explanatory Materials Error is of a type contemplated in the section. Northcott’s submission advocated genuine agreement could be established under the section for each of the identified errors.

[7] The findings made about each of the errors in the first decision include the following:

• Information Provision and Voting Request Errors

“…Northcott was in error in excluding from the vote for the agreement up to 3 employees on long-term workers’ compensation absences and 87 casual employees solely on the basis that…

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.

Continue reading The Northcott Society

Details

AGLC: The Northcott Society [2021] FWCA 3854
Case: [2021] FWCA 3854
Decision Date: 5 JULY 2021

CaseChat Overview and Summary

The Northcott Society sought approval for the Northcott Enterprise Agreement 2021-2023, which outlined the terms and conditions of employment for its employees. The matter was heard in the Fair Work Commission, with the union representing the employees and the employer, The Northcott Society, being the respondent. The primary focus of the case was to determine whether the proposed agreement met the necessary legal standards for approval, particularly in relation to the provisions concerning pay rates, working conditions, and dispute resolution mechanisms.

The legal issues before the Commission centred on whether the proposed agreement complied with the Fair Work Act 2009, specifically sections relating to good faith bargaining and the avoidance of unprotected industrial action. The union argued that certain provisions of the agreement did not adequately protect employee interests, while the employer contended that the agreement was fair and reasonable, and in line with legal requirements. The Commission had to assess whether the agreement was made in good faith, provided for a fair and efficient system of dispute resolution, and did not include terms that were detrimental to employees' rights.

The Fair Work Commission found that the proposed agreement largely met the legal standards required for approval. The Commission determined that the good faith bargaining process had been followed appropriately, and that the agreement contained adequate provisions for dispute resolution. While some minor adjustments were necessary to address specific concerns raised by the union, the overall agreement was deemed to be fair and reasonable. The Commission approved the agreement, subject to these minor amendments, and ordered that the agreement be registered with the Fair Work Commission.

The final orders included the registration of the Northcott Enterprise Agreement 2021-2023 with the Fair Work Commission, subject to the minor amendments required to address the union's concerns. The Commission also directed that the employer and the union notify their employees of the outcome and ensure that the amended agreement was implemented accordingly.

Orders