Abbeyfield Australia Ltd T/A Abbeyfield Australia [2017] FWC 4847

1 Fair Work Act 2009 s.185—Enterprise agreement Abbeyfield Australia Ltd T/A Abbeyfield Australia (AG2017/1760) DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 5 OCTOBER 2017 Application for approval of the Abbeyfield Australia Enterprise Agreement 2016. [1] An application has been made for approval of an enterprise agreement known as the Abbeyfield Australia Enterprise Agreement 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and was an application for the approval of a single enterprise agreement. [2] The application for approval of the Agreement was made by Abbeyfield Australia Ltd t/a Abbeyfield Australia (AAL). AAL initially presented itself to the Commission as both an employer covered by the agreement and as an employer bargaining representative. In later submissions, AAL asked to be viewed solely as a bargaining representative for the employers covered by the Agreement. AAL has provided an instrument of appointment from each of the employers covered by the agreement appointing AAL as their bargaining representative for the agreement. [3] Clause 2 of the Agreement provides that the Agreement “is binding on Abbeyfield Australia Ltd and the 23 independent Abbeyfield Societies it represents listed in Schedule A to this agreement”. Schedule A of the Agreement contains the names of 24 Abbeyfield Societies. The Agreement as made with employees is expressed to cover the 24 Abbeyfield Societies mentioned in Schedule A and AAL. The Agreement is also expressed to cover employees employed as housekeepers in an Abbeyfield House operated by one of the covered Abbeyfield Societies. [4] During consideration of the Agreement, the Commission received information about the relationship between AAL and the 24 Abbeyfield Societies. Each of the Abbeyfield Societies operates an Abbeyfield House, which provides assisted living accommodation to disabled and elderly people. Each Abbeyfield Society is run by a volunteer committee. [5] AAL provides operational support to the Abbeyfield Societies covered by the Agreement and performs a co-ordinating role in the overall operations of Abbeyfield. AAL sets policies and develops models which local Abbeyfield Societies must follow during the operation of their respective Abbeyfield Houses. AAL appears to have managed the agreement making process on behalf of the 24 Abbeyfield Societies. The Abbeyfield Societies [2017] FWC 4847 DECISION -- 1 of 4 -- [2017] FWC 4847 2 covered by the Agreement are all member of AAL and have voting rights at AAL’s Annual and Special General Meetings. [6] Each of the 24 Abbeyfield Societies covered by the Agreement, along with AAL, provided an individual Form F17- Employer’s Statutory Declaration to the Commission. With the exception of the Form F17s submitted on behalf of AAL, the Abbeyfield Society (Malvern) Inc (ASM) and the Abbeyfield Society (Launceston) Inc (ASL), the Form F17s submitted to the Commission were all substantively identical. The Form F17s submitted on behalf of ASM and ASL were substantially similar to one another, and both were similar to the Form F17 submitted on behalf of AAL. [7] The Form F17 submitted on behalf of AAL contains the following paragraph as the response to questions 2.3 to 2.7: Abbeyfield Australia Limited, the Abbeyfield Society (Launceston) Inc, and the Abbeyfield Society (Malvern) Inc do not currently employ any employee in that employee classification (Housekeeper) but may do so during the term of this agreement. [8] The Form F17 submitted on behalf of ASM contains either the above or the following paragraph in response to questions 2.3 to 2.7: The Abbeyfield Society (Malvern) Inc does not currently employ any employee in that employee classification (Housekeeper) but may do so during the term of this agreement. [9] The Form F17 submitted on behalf of ASL contains the following paragraph in response to questions 2.3 to 2.7: The Abbeyfield Society (Launceston) Inc does not currently employ any employee in that employee classification (Housekeeper) but may do so during the term of this agreement. [10] Submissions made to the Commission by AAL confirmed that neither ASM nor ASL was operating an Abbeyfield House nor did they employ any employees who would be covered by the Agreement at the time that the vote of employees who will be covered by the Agreement was held to approve the Agreement. It was submitted that both have done so in the past. Both ASM and ASL are included in the coverage of the Agreement in the hope that they would be able to recommence operations sometime in the future. Consideration [11] Section 172 of the Act sets out the types of enterprise agreements that can be made under the Act. It relevantly provides as follows: … Single -enterprise agreements -- 2 of 4 -- [2017] FWC 4847 3 (2) An employer, or 2 or more employers that are single interest employers, may make an enterprise agreement (a single-enterprise agreement): (a) with the employees who are employed at the time the agreement is made and who will be covered by the agreement; or (b) with one or more relevant employee organisations if: (i) the agreement relates to a genuine new enterprise that the employer or employers are establishing or propose to establish; and (ii) the employer or employers have not employed any of the persons who will be necessary for the normal conduct of that enterprise and will be covered by the agreement. … Multi -enterprise agreements (3) Two or more employers that are not all single interest employers may make an enterprise agreement (a multi-enterprise agreement): (a) with the employees who are employed at the time the agreement is made and who will be covered by the agreement; or (b) with one or more relevant employee organisations if: (i) the agreement relates to a genuine new enterprise that the employers are establishing or propose to establish; and (ii) the employers have not employed any of the persons who will be necessary for the normal conduct of that enterprise and will be covered by the agreement. … Greenfields agreements (4) A single-enterprise agreement made as referred to in paragraph (2)(b), or a multi-enterprise agreement made as referred to in paragraph (3)(b), is a greenfields agreement. … [12] Section 172 specifically requires that an enterprise agreement that is not a greenfields agreement must be made with employees who will be covered by the agreement and who are employed at the time the agreement is made. It seems to follow that any employer who is seeking to make an agreement that is not a greenfields agreement must have agreement- covered employees who are employed at the time the agreement is made. This is so even when 2 or more employers are, as appears to be the case here, making an agreement with employees. Each such employer must have employees who will be covered by the agreement when the agreement is made. [13] It is clear from the information provided to the Commission that neither ASM nor ASL had any employees who would have been covered by the Agreement at the time the Agreement was made. -- 3 of 4 -- [2017] FWC 4847 4 [14] As a result, it appears that the Agreement is not an enterprise agreement of a type allowed by s.172 of the Act, and that the Agreement has not been validly made. Consequently, the Agreement cannot be approved. [15] AAL attempted to address my concerns on this issue by offering to provide an undertaking removing ASM and ASL from the coverage of the Agreement. As the Agreement as made, was not a single-enterprise agreement within the meaning of s.172(2)(a) of the Act, an undertaking of the kind suggested by AAL would not cure the defect. [16] The employers covered by the Agreement that have in their employ, employees covered by the Agreement will need to make an enterprise agreement anew pursuant to the Act and thereafter lodge an application for its approval. The application is dismissed. DEPUTY PRESIDENT Printed by authority of the Commonwealth Government Printer <Price code A, PR596174> -- 4 of 4 --