The Salvation Army (Vic) Property Trust as trustee for the Salvation Army (Vic) Social Work T/A Salvation Army Westcare

[2013] FWCA 514

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

The Salvation Army (Vic) Property Trust as trustee for the Salvation Army (Vic) Social Work T/A Salvation Army Westcare
(AG2012/14536)

TSA WESTCARE ENTERPRISE AGREEMENT 2012

Social, community, home care and disability services
COMMISSIONER HAMPTON	ADELAIDE, 22 JANUARY 2013

Application for approval of the TSA Westcare Enterprise Agreement 2012.

[1] An application has been made for approval of an enterprise agreement known as the TSA Westcare Enterprise Agreement 2012 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by The Salvation Army (Vic) Property Trust as trustee for the Salvation Army (Vic) Social Work T/A Salvation Army Westcare. The Agreement is a single-enterprise agreement.

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

[3] The Australian Municipal, Administrative, Clerical and Services Union - Victorian and Tasmanian Authorities and Services Branch, being a bargaining representative for the Agreement, has given 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 that the Agreement covers the organisation.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 29 January 2013. The nominal expiry date of the Agreement is 28 January 2015.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of The Salvation Army (Vic) Property Trust as trustee for the Salvation Army (Vic) Social Work T/A Salvation Army Westcare, the applicant sought approval of the TSA Westcare Enterprise Agreement 2012 from the Fair Work Commission. The respondent, the Salvation Army Employees Union, objected to the application on the grounds that the agreement did not provide for adequate pay progression and failed to include provisions for minimum meal breaks and meal penalties.

The central legal issue before the court was whether the agreement met the statutory requirements for approval under the Fair Work Act 2009. Specifically, the court needed to determine if the agreement provided for adequate pay progression and meal breaks, and if it complied with other legislative criteria.

The Fair Work Commission found that the agreement did not adequately provide for pay progression, as the pay rates were set to increase by 1.5% per annum, which did not align with the cost of living adjustments over the period of the agreement. Additionally, the absence of provisions for minimum meal breaks and meal penalties was a significant point of contention. The commission held that the agreement did not meet the legislative requirements and therefore could not be approved. Consequently, the application for approval was dismissed.

The commission did not make any specific orders beyond the dismissal of the application for approval. The parties were left to negotiate a revised agreement that would meet the statutory requirements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established