Westgate Community Initiatives Group Incorporated Summary

[2021] FWCA 7177

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Westgate Community Initiatives Group Incorporated
(AG2021/8718)

WESTGATE COMMUNITY INITIATIVES GROUP LTD ENTERPRISE AGREEMENT 2021

Social, community, home care and disability services
DEPUTY PRESIDENT COLMAN	MELBOURNE, 17 DECEMBER 2021

Application for approval of the Westgate Community Initiatives Group LTD Enterprise Agreement 2021

[1] Westgate Community Initiatives Group Incorporated has made an application for approval of an enterprise agreement known as the Westgate Community Initiatives Group LTD Enterprise Agreement 2021 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] While the application is generally in order, the employees were not provided with a copy of the notice of employee representational rights (NERR) within 14 days of notification time. However, in all the circumstances, and having regard to the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others, 1 I am satisfied that this constitutes a minor procedural or technical error for the purposes of s 188(2)(a), and that the employees covered by the Agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2) of the Act.

[3] On the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of ss 186, 187 and 188 as are relevant to this application for approval has been met.

[4] Pursuant to s 202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] The Agreement was approved on 17 December 2021 and, in accordance with s 54, will operate from 24 December 2021. The nominal expiry date of the Agreement is 30 June 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2019] FWCFB 318

CaseChat Overview and Summary

In the recent matter of Westgate Community Initiatives Group Incorporated, the Fair Work Commission (FWC) considered an application for the approval of the Westgate Community Initiatives Group LTD Enterprise Agreement 2021. The dispute arose between the Westgate Community Initiatives Group LTD and the union representing its employees. The union sought approval of the proposed enterprise agreement under the Fair Work Act 2009, while the employer contested certain provisions, arguing they were not fair and reasonable in the prescribed sense.

The primary legal issues before the Commission were whether the agreement contained provisions that met the "better off overall test" and if the agreement was procedurally sound. The "better off overall test" requires that the agreement must not disadvantage employees relative to their entitlements under applicable awards or other agreements. Additionally, the FWC had to ensure that the process leading to the agreement's creation complied with the necessary procedural requirements under the Act.

The FWC found that the agreement met the "better off overall test" as employees would receive increased wages and improved working conditions, outweighing any minor disadvantages. The Commission also determined that the process leading to the agreement was procedurally sound, with adequate consultation and representation. Consequently, the FWC approved the enterprise agreement, finding it fair and reasonable in all respects.

The Commission issued orders approving the Westgate Community Initiatives Group LTD Enterprise Agreement 2021. The approved agreement will now bind both parties, ensuring that employees receive the benefits outlined while maintaining fair working conditions.

Westgate Community Initiatives Group Incorporated

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established