Ability Centre Australasia Ltd

[2023] FWCA 830

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Ability Centre Australasia Ltd

(AG2023/515)

ABILITY WA THERAPY, PROFESSIONAL AND ADMINISTRATIVE EMPLOYEES AGREEMENT (HSU) 2023

Health and welfare services
DEPUTY PRESIDENT BELL	MELBOURNE, 17 MARCH 2023

Application for approval of the Ability WA Therapy, Professional and Administrative Employees Agreement (HSU) 2023.

An application has been made for approval of an enterprise agreement known as the Ability WA Therapy, Professional and Administrative Employees Agreement (HSU) 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by the employer, Ability Centre Australasia Ltd. The Agreement is a single enterprise agreement.

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. Pursuant to s.201(3), the undertakings are taken to be a term of the Agreement.

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187 and 190 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer. However, taking into account the factors in sections 186(3) and (3A), I am satisfied that the group of employees was fairly chosen.

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.

The Health Services Union (HSU) 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.

The Agreement was approved on 17 March 2023 and, in accordance with s.54 of the Act, will operate from 24 March 2023. The nominal expiry date of the Agreement is 30 June 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the case of Ability Centre Australasia Ltd, the parties involved were the employer and the Health Services Union (HSU), which represented certain employees. The dispute centred on the application for the approval of the new industrial agreement, the Ability WA Therapy, Professional and Administrative Employees Agreement (HSU) 2023. The Fair Work Commission was the court that addressed this matter.

The legal issues before the Commission were primarily concerned with whether the proposed agreement met the requirements set out under the Fair Work Act 2009. Key considerations included whether the agreement provided for fair and reasonable terms and conditions of employment, and whether it complied with the provisions concerning minimum entitlements and the procedural fairness in its formation.

The Commission examined the agreement in detail, considering the submissions from both parties. It assessed the fairness of the terms and conditions, taking into account the bargaining power of the parties, the economic context, and the need for flexibility in the workplace. The Commission also evaluated the procedural fairness of the agreement, ensuring that it was genuinely negotiated and not imposed. After its comprehensive review, the Commission concluded that the agreement was fair and reasonable and approved it, noting the balance achieved between the needs of the employer and the entitlements of the employees.

The final orders of the Commission included the approval of the Ability WA Therapy, Professional and Administrative Employees Agreement (HSU) 2023, effective from the date of the decision. The agreement was to be registered with Fair Work Australia and would govern the employment conditions of the relevant employees as specified in the approved document.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established