DECISION

Fair Work Act 2009
s.185—Enterprise agreement

The Northcott Society
(AG2016/6612)

NORTHCOTT ENTERPRISE AGREEMENT 2016-2018

Social, community, home care and disability services
COMMISSIONER SAUNDERS	NEWCASTLE, 24 MAY 2017

Application for approval of the Northcott Enterprise Agreement 2016-2018. BOOT satisfied. Undertakings accepted. Enterprise agreement approved.

[1] The Northcott Society (the Employer) has applied to the Fair Work Commission (Commission) for approval of an enterprise agreement known as the Northcott Enterprise Agreement 2016-2018 (Enterprise Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act).

Background

[2] The Enterprise Agreement is a single enterprise agreement and is not a greenfields agreement. It covers employees of the Employer who are covered by the Northcott Enterprise Agreement 2009-2011, 1 namely a range of community services workers, allied health professionals, and support services workers.

[3] The Form F17 filed by the Employer in support of the application for approval of the Enterprise Agreement includes a declaration to the effect that 245 employees cast a valid vote and 219 employees voted to approve the Enterprise Agreement.

[4] Ms Fran Johnston, Industrial Officer of the Health Services Union, New South Wales Branch (HSU), made a statutory declaration (Form F18) on 24 October 2016 in relation to the Employer’s application for approval of the Enterprise Agreement. In that declaration, Ms Johnston declared that:

• the HSU was a bargaining representative for the Enterprise Agreement;

• the HSU supported the approval of the Enterprise Agreement by the Commission and did not have any grounds of objection to it;

• she agreed with the matters contained in the Employer’s Form F17 statutory declaration that were within her knowledge; and

• the HSU wanted to be covered by the Enterprise Agreement.

[5] Ms Natalie Lang, Branch Secretary of the Australian Services Union NSW & ACT (Services) Branch (ASU), made a statutory declaration (Form F18) on 28 October 2016 in relation to the Employer’s application for approval of the Enterprise Agreement. In that declaration, Ms Lang declared that:

• the ASU was a bargaining representative for the Enterprise Agreement;

• the ASU supported the approval of the Enterprise Agreement by the Commission, subject to the Employer providing undertakings to address the matters identified by Ms Lang in her statutory declaration;

• she disagreed with the following matters contained in the Employer’s Form F17 statutory declaration:

“Schedule A – Table 2 on-call allowances below SCHADS. Current on-call allowance for weekdays is $17.96 and for weekends is $35.56.”

• the ASU wanted to be covered by the Enterprise Agreement.

[6] The attitude of each of the HSU and the ASU in relation to the approval of the Enterprise Agreement has changed since those statutory declarations were made in October 2016.

[7] On 27 March 2017, the HSU filed 30 pages of submissions in support of its contention that the Enterprise Agreement should not be approved. 2 The HSU also filed submissions in reply on 19 April 2017.

[8] On 19 April 2017, Ms…

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

AGLC: The Northcott Society [2017] FWCA 2164
Case: [2017] FWCA 2164
Decision Date: 24 MAY 2017

CaseChat Overview and Summary

The case before the Fair Work Commission concerned the application for approval of the Northcott Enterprise Agreement 2016-2018, a proposed agreement between the Northcott Society and its employees. The Northcott Society is an organisation that provides support for people with disabilities and their families. The dispute centred on whether the proposed agreement met the legal standards for approval under the Fair Work Act 2009. The application was heard in the Fair Work Commission, which has jurisdiction over employment-related matters in Australia.

The key legal issues before the Commission were whether the proposed agreement complied with the formal requirements set out in the Fair Work Act, and if it adhered to the "BOOT" test, which assesses whether the agreement is in the best interests of the employees it covers. Additionally, the Commission needed to consider any undertakings provided by the parties that would address any potential deficiencies in the agreement. The Northcott Society argued that the agreement was comprehensive, fairly negotiated, and in the best interests of the employees. The Commission was required to rigorously examine these assertions to ensure that the agreement met the statutory criteria for approval.

The Commission found that the proposed agreement met the formal requirements of the Fair Work Act and satisfied the BOOT test. It noted that the agreement was the result of good faith negotiations and provided for fair and reasonable terms for the employees. Furthermore, the Commission accepted the undertakings provided by the Northcott Society to address minor issues that could potentially impact the agreement's fairness. The Commission was satisfied that these undertakings would mitigate any adverse effects and ensure that the agreement remained in the best interests of the employees.

Following its analysis, the Commission approved the Northcott Enterprise Agreement 2016-2018. The decision was based on the comprehensive nature of the agreement, the evidence of good faith negotiations, and the effectiveness of the undertakings in addressing any minor deficiencies. The Commission's approval of the agreement ensures that it will be legally binding and will govern the employment terms of the employees for the specified period.

Orders