Witmore Limited T/A Witmore
[2023] FWC 2606
•9 OCTOBER 2023
| [2023] FWC 2606 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.225—Enterprise agreement
Witmore Limited T/A Witmore
(AG2023/3186)
WITMORE ENTERPRISES INC. (SUPPORTED EMPLOYEES) WORKPLACE AGREEMENT 2017
| Social, community, home care and disability services | |
| DEPUTY PRESIDENT SAUNDERS | NEWCASTLE, 9 OCTOBER 2023 |
Application for termination of the Witmore Enterprises Inc. (Supported Employees) Workplace Agreement 2017
Witmore Limited (Witmore) is covered by the Witmore Enterprises Inc. (Supported Employees) Workplace Agreement 2017 (Agreement) and has made an application to terminate the Agreement pursuant to s 225 of the Fair Work Act 2009 (Cth) (Act). The nominal expiry date of the Agreement was 31 December 2020.
Section 226 of the Act sets out the circumstances in which an enterprise agreement must be terminated where an application is made under s 225. Section 226 relevantly provides as follows:
“226 Terminating an enterprise agreement after its nominal expiry date
(1) If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if:
(a) the FWC is satisfied that the continued operation of the agreement would be unfair for the employees covered by the agreement; or
(b) the FWC is satisfied that the agreement does not, and is not likely to, cover any employees; or
(c) all of the following apply:
(i) the FWC is satisfied that the continued operation of the enterprise agreement would pose a significant threat to the viability of a business carried on by the employer, or employers, covered by the agreement;
(ii) the FWC is satisfied that the termination of the enterprise agreement would be likely to reduce the potential of terminations of employment covered by subsection (2) for the employees covered by the agreement;
(iii) if the agreement contains terms providing entitlements relating to the termination of employees’ employment— each employer covered by the agreement has given the FWC a guarantee of termination entitlements in relation to the termination of the agreement.
(1A) However, the FWC must terminate the enterprise agreement under subsection (1) only if the FWC is satisfied that it is appropriate in all the circumstances to do so.
…
(3) In deciding whether to terminate the agreement, the FWC must consider the views of the following covered by the agreement:
(a) the employees (unless there are no employees covered by the agreement);
(b) each employer;
(c) each employee organisation (if any).
Note: The President may be required to direct a Full Bench to perform a function or exercise a power in relation to the matter if any of the employers, employees, or employee organisations, covered by the agreement oppose the termination (see subsection 615A(3)).
(4) In deciding whether to terminate the agreement (the existing agreement), the FWC must have regard to:
(a) whether the application was made at or after the notification time for a proposed enterprise agreement that will cover the same, or substantially the same, group of employees as the existing agreement; and
(b) whether bargaining for the proposed enterprise agreement is occurring; and
(c) whether the termination of the existing agreement would adversely affect the bargaining position of the employees that will be covered by the proposed enterprise agreement.
(5) In deciding whether to terminate the agreement, the FWC may also have regard to any other relevant matter.”
The F24C declaration made by Ms Anita White, Chief Executive Officer, on 7 September 2023 and the annexure thereto sets out that:
(a) the Agreement has passed its nominal expiry date;
(b)Whitmore employs 29 employees with a disability who are covered by the Agreement and 44 employees who provide support and supervision to this workforce as well as general management of the operation;
(c)pursuant to the Agreement, Witmore has used the SkillsMaster System and the SkillsMaster Wage Assessment Tool to determine wages for supported employees (employees with a disability). The tool is an approved wage assessment tool under the Supported Employment Services Award 2020 (SES Award);
(d)the Commission recently determined to remove the wage assessment tools from the SES Award with effect from 30 June 2023;[1]
(e)the effect being, that the wage setting methodology, the SkillsMaster Wage Assessment Tool, used in the Agreement is outdated, potentially unlawful and inconsistent with the Commission’s determination of new wage setting methodology for employees with a disability;[2]
(f) the Agreement does not permit the utilisation of alternative methodologies of wage setting as it is submitted that it contains, at clause 3.1 and 4.1, an obligation that Witmore apply the SkillsMaster Wage Assessment Tool in assessing a supported employee;
(g)pursuant to s 206 of the Act, the base rate of pay payable to the employee under an enterprise agreement must not be less than the base rate of pay that would be payable to the employee under the modern award. The effect being that supported employees would be required to undergo two different, often stressful, assessment processes to ensure that they are not being paid less than the award rate;
(h)schedule H of the SES Award operates to ensure that supported employees do not suffer a reduction in their wage as a result of the implementation of the new SES Award wages structure;
(i) applying two separate wage setting methodologies for each supported employee is not financially or otherwise possible with the resources of Witmore; and
(j)any ongoing use of wage assessment tools may lead to potential litigation (similar to the Nojin litigation) or arguments that the operation of the SkillsMaster Wage Assessment Tool is unlawfully discriminatory against employees.
On 13 September 2023, I directed Witmore to provide to each employee covered by the Agreement with a copy of the application for termination of the Agreement together with a copy of the declaration by Ms White, its annexure and the proposed undertakings. The employees and any employee organisation representing the employees were then given an opportunity to contact my Chambers if they wished to oppose the application.
On 25 September 2023, my Chambers received a statutory declaration made by Ms Anita White on 25 September 2023 setting out Whitmore’s compliance with the direction referred to above.
There has not been any response nor indication of opposition or objection to the termination of the Agreement by or on behalf of any employee covered by the Agreement.
Based on the material filed in support of the application for termination of the Agreement, I am satisfied that the continued operation of the Agreement would be unfair to the employees covered in circumstances where the Commission has removed wage assessment tools from the SES Award and the Agreement requires supported employees to be assessed by the SkillsMaster Wage Assessment Tool rather than the updated methodology in the SES Award.
Witmore has provided undertakings to preserve some entitlements of employees that are granted under the Agreement. This undertaking is included as Annexure A to this decision.
As there is no opposition to the termination application by an employee, employer or an employee organisation, s 615A(3) of the Act is not engaged and I can determine this application in my capacity as a single member of the Commission.
In making this decision, I have taken into account the views expressed by Witmore in support of its application to terminate the Agreement (s 226(3)). The employees covered by the Agreement have not expressed any views. There are no employee organisations covered by the Agreement.
None of the circumstances referred to in s 226(4) are evident in this case. There are no other relevant matters to be considered pursuant to s 226(5) of the Act.
In all of the circumstances, I am satisfied that termination of the Agreement is appropriate. Accordingly, pursuant to s 227 of the Act I terminate the Agreement with effect from midnight on 13 September 2023.
DEPUTY PRESIDENT
Annexure A
[1] [2022] FWCFB 245
[2] Ibid
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