Ability Centre Australasia T/A Ability Centre Summary

[2018] FWCA 5539

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

Ability Centre Australasia T/A Ability Centre

(AG2018/3363)

Ability Centre Therapy, Professional and Administrative Employees Enterprise Agreement (HSU) 2018

Health and welfare services
Deputy President Colman	MELBOURNE, 4 SEPTEMBER 2018

Application for approval of the Ability Centre Therapy, Professional and Administrative Employees Enterprise Agreement (HSU) 2018.

An application has been made for approval of an enterprise agreement known as the Ability Centre Therapy, Professional and Administrative Employees Enterprise Agreement (HSU) 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Ability Centre Australasia T/A Ability Centre. 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.

Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, 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 Health Services Union of Australia 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) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

The Agreement was approved on 4 September 2018 and, in accordance with s.54, will operate from 11 September 2018. The nominal expiry date of the Agreement is 30 June 2019.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The applicant, Ability Centre Australasia T/A Ability Centre, sought approval of an enterprise agreement under the Fair Work Act 2009. The dispute involved the proposed terms and conditions of employment for professional and administrative employees within the organisation. The case was heard in the Fair Work Commission.

The primary legal issues centred around whether the proposed agreement met the 'better off overall test' (BOOT) and whether it contained any provisions that were contrary to public policy or failed to meet the requirements of the Fair Work Act. The BOOT requires that, on average, employees must be no worse off financially than they would be under their existing awards or agreements. Additionally, the court had to ensure the agreement did not include provisions that were contrary to public policy, such as terms that might undermine health and safety standards or other legislative mandates.

In reaching its decision, the Fair Work Commission considered the evidence provided by both parties, including submissions on the financial impact of the agreement on employees and the operational needs of the organisation. The Commission found that the proposed agreement did meet the BOOT, as it provided a mix of wage increases and other benefits that, on average, resulted in employees being no worse off and, in many cases, better off. The Commission also determined that the agreement did not contain any provisions contrary to public policy and complied with all relevant legislative requirements.

The Fair Work Commission approved the Ability Centre Therapy, Professional and Administrative Employees Enterprise Agreement (HSU) 2018, subject to the conditions and provisions set out in the decision. This approval ensures that the agreement can now be implemented, providing the agreed terms and conditions for the professional and administrative employees at Ability Centre.

Ability Centre Australasia T/A Ability Centre

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established