Villamanta Disability Rights Legal Service Inc

[2024] FWCA 3204

[2024] FWCA 3204

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Villamanta Disability Rights Legal Service Inc

(AG2024/3038)

VILLAMANTA DISABILITY RIGHTS LEGAL SERVICE INC ENTERPRISE AGREEMENT 2024-2026

Social, community, home care and disability services industry
DEPUTY PRESIDENT MASSON	MELBOURNE, 9 SEPTEMBER 2024

Application for approval of the Villamanta Disability Rights Legal Service Inc Enterprise Agreement 2024-2026.

1. An application has been made for approval of an enterprise agreement known as the Villamanta Disability Rights Legal Service Inc Enterprise Agreement 2024-2026 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Villamanta Disability Rights Legal Service Inc (the Applicant). The Agreement is a single enterprise agreement.

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 3 August 2023 and the Agreement was made on 30 July 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

1. The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

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

1. Pursuant to s.205A(2) of the Act, the workplace delegates’ rights term prescribed by the Social, Community, Home Care and Disability Services Industry Award 2010 (the Award) is taken to be a term of the Agreement.

1. I note that several clauses may be inconsistent with the National Employment Standards. The Applicant has provided a National Employment Standards (NES) precedence clause as part of their written undertakings. I am consequently satisfied that the more beneficial entitlements of the NES will prevail.

1. The notice of employee representational rights (NERR) provided to employees was based on an old version of the NERR template. I am satisfied that in all of the circumstances and having regard to the Full Bench decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[1], this constitutes a minor procedural or technical error for the purpose of s.188(5) of the Act. Further, I am satisfied that the employees covered by the Agreement were not likely to be disadvantaged by the error.

1. Correspondence was sent to the Employer by my Chambers on 23 August 2024 raising several concerns including that as casual employees did not appear to be eligible for the sign on bonus and would receive rates of pay equal to the Award, it was unclear how they could be considered better off overall. The Employer responded on 29 August 2024 advising that there were no casual employees covered by the Agreement when the Agreement was made and that there is no intention to offer casual employment now or in the foreseeable future. I am consequently satisfied that per s. 193A(6A) of the Act casual employment is not a type of employment that is reasonably foreseeable for the purposes of s.193A(6) of the Act and the better off overall test.

1. The Applicant failed to provide employees with a copy of or access to the incorporated Award. However, having regard to the Statement of Principles on Genuine Agreement, and that the Australian Municipal, Administrative, Clerical and Services Union (ASU), being a bargaining representative for the Agreement, has not raised any concerns that the Agreement was not genuinely agreed, I am satisfied that the Agreement was genuinely agreed.

1. Clause 20 of the Agreement provides that the Award clause 13.3 Salary Packaging shall apply, however the relevant Award clause regarding salary packaging is clause 14. Clause 19.3(a) of the Agreement also contains a referencing error and refers to clause 16.1, however the Agreement does not contain a clause 16.1. I am satisfied that these referencing errors are obvious, defects or irregularities and on my own initiative will amend the Agreement accordingly pursuant to s. 218A of the Act. I will vary the Agreement pursuant to s. 218A by deleting the reference to ‘clause 13.3’ and replacing it with ‘clause 14’ where it appears in clause 20 and by deleting the words ‘Subject to clause 16.1’ where they appear in clause 19.3(a).

1. The ASU 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) I note that the Agreement covers the organisation.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 16 September 2024. The nominal expiry date of the Agreement is 31 December 2026.

DEPUTY PRESIDENT

Annexure A

[1] [2019] FWCFB 318.

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