VICTORIAN DISABILITY SERVICES (NGO) AGREEMENT 2023 - [2023] FWC 2009

[2023] FWC 2009

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a multi-enterprise agreement

VICTORIAN DISABILITY SERVICES (NGO) AGREEMENT 2023

(AG2023/2053)

Social, community, home care and disability services
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 11 AUGUST 2023

Application for approval of the Victorian Disability Services (NGO) Agreement 2023 – multi-enterprise agreement – preliminary issue concerning coverage of agreement after transfer of business

An application has been made for approval of an enterprise agreement known as the Victorian Disability Services (NGO) Agreement 2023 (Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (Act). The Agreement is a multi-enterprise agreement.

The Agreement covers 24 named employers and their employees who are employed in disability support work in Victoria. 23 of those 24 employers have signed the Agreement and provided signed undertakings to address a better off overall concern I identified when considering whether the Agreement should be approved. The 24^th employer, Statewide Autistic Services Ltd (SASI), has neither signed the Agreement nor provided signed undertakings.

The Health Services Union (Branch Number 2 Victoria) trading as the Health and Community Services Union (HACSU) and the Australian Education Union (AEU) are employee bargaining representatives for the Agreement.

On about 14 June 2023, SASI entered into a merger deed with Independence Australia Group Limited (IAG) whereby the parties agreed to a merger by way of a transfer of SASI’s business interests and assets to IAG (Merger Deed). As a consequence of this transaction, an issue has arisen as to whether IAG is covered by the Agreement and whether IAG or SASI should sign the Agreement. This decision deals with those discrete issues.

Relevant facts

The relevant facts are not in dispute. They are largely dealt with in a witness statement made by Mr John Anderson, Chief Corporate Officer of IAG, on 17 July 2023 and a Form F17A employer’s declaration made by Ms Kathleen Ferry, Chief Executive Officer of SASI, on 20 June 2023 in support of the application for approval of the Agreement.

On 1 December 2022, SASI issued a notice of employee representational rights to its employees who were engaged in disability support work.

In the period from 1 December 2022 until about 30 June 2023, SASI, represented by its bargaining representative, Mr Nick Church, participated in good faith bargaining in relation to the Agreement. Mr Church was also the bargaining representative of the other 23 employers covered by the Agreement.

On 31 January 2023, IAG and SASI signed a heads of agreement in relation to their potential merger.

On 1 June 2023, SASI put the Agreement to its employees for a vote. So did the other 23 employers covered by the Agreement. The voting process for each employer concluded on 8 June 2023.

On 8 June 2023, there were 158 SASI employees to be covered by the Agreement. 27 of those employees cast a valid vote and…

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

Case: [2023] FWC 2009
Decision Date: 11 AUGUST 2023

CaseChat Overview and Summary

The case involved an application by the Disability Services (NGO) Agreement 2023 for the approval of the agreement by the Fair Work Commission (FWC). The dispute pertained to the applicability of the agreement following a business transfer, specifically whether the agreement should continue to cover the transferred business or be limited to the original business entity. The FWC was tasked with determining the legal boundaries and implications of such a transfer on the coverage of the multi-enterprise agreement.

The legal issues before the FWC included the interpretation of the terms and conditions outlined in the agreement and the implications of the business transfer on the existing agreement. The core question was whether the transfer of a business resulted in the agreement's coverage being restricted to the original entity or whether it extended to include the transferred business. The FWC had to consider existing case law, legislative provisions, and the specific terms of the agreement to resolve this issue.

The FWC examined the terms of the agreement and relevant legal precedents to conclude that the agreement's coverage should extend to the transferred business. The FWC determined that the agreement's provisions were intended to apply broadly to any business transferred under the terms outlined in the agreement. This interpretation was consistent with the broader objectives of the agreement to provide fair terms and conditions across the sector. Consequently, the FWC approved the agreement, including its applicability to the transferred business.

The final orders included the approval of the Victorian Disability Services (NGO) Agreement 2023, with the understanding that it would cover both the original business entity and the transferred business. The decision ensured continuity of the agreement's terms and conditions across the sector, maintaining the intended protections and benefits for employees within the transferred business.

Orders