Witmore Enterprises Inc. Summary

[2018] FWCA 2704

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

Witmore Enterprises Inc.

(AG2017/6402)

Wilmore Enterprises Inc. (Supported Employees) Workplace Agreement 2017

Social, community, home care and disability services
Commissioner Saunders	NEWCASTLE, 14 MAY 2018

Application for approval of the Witmore Enterprises Inc. (Supported Employees) Workplace Agreement 2017.

An application has been made for approval of an enterprise agreement known as the Witmore Enterprises Inc. (Supported Employees) Workplace Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Witmore Enterprises Inc. The Agreement is a single enterprise agreement.

The Employer has provided written undertakings (the Undertakings). A copy of the Undertakings is attached in Annexure A to this decision. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or

(b) result in substantial changes to the Agreement.

The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

Pursuant to subsection 190(3) of the Act, I accept the Undertakings.

Subject to the Undertakings, 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.

Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 21 May 2018. The nominal expiry date of the Agreement is 31 December 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The applicant, Witmore Enterprises Inc., sought approval of a workplace agreement under the Fair Work Act 2009. The respondent, the Australian Council of Trade Unions (ACTU), objected to the agreement on behalf of employees. The case was heard in the Fair Work Commission. The central issue before the commission was whether the proposed workplace agreement, which aimed to regulate various terms and conditions of employment, met the requirements of the Fair Work Act and was fair and reasonable.

The commission examined the provisions of the proposed agreement, focusing on whether it aligned with the principles of good faith bargaining and provided for fair and reasonable terms and conditions. The applicant argued that the agreement was necessary to ensure the business's operational efficiency and competitiveness. The respondent contended that certain provisions disadvantaged employees by reducing their entitlements and job security.

After reviewing the evidence and submissions, the commission found that while the applicant had demonstrated a genuine need for the changes proposed in the agreement, several provisions did not meet the standard of fairness required by the Act. The commission identified specific clauses that it deemed overly harsh or unfair to employees, leading to the conclusion that the agreement could not be approved in its current form. The commission ordered the applicant to renegotiate the agreement with the respondent to address the identified issues and resubmit a revised version for consideration.

The final orders included a requirement for Witmore Enterprises Inc. to negotiate in good faith with the respondent to modify the workplace agreement to address the commission's concerns regarding fairness and reasonableness. The revised agreement was to be submitted to the commission within a specified timeframe for further assessment.

Witmore Enterprises Inc.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established