Aboriginal Community Elders Services Incorporated Summary

[2022] FWCA 1304

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Aboriginal Community Elders Services Incorporated

(AG2022/673)

Aboriginal Community Elders Services, ANMF and HWU Enterprise Agreement 2021

Aged care industry
COMMISSIONER YILMAZ	MELBOURNE, 13 APRIL 2022

Application for the approval of Aboriginal Community Elders Services, ANMF and HWU Enterprise Agreement 2021

An application has been made for approval of an enterprise agreement known as the Aboriginal Community Elders Services, ANMF and HWU Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Aboriginal Community Elders Services Incorporated. 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. 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, 188 and 190 are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

I observe that clauses 49.2 and 51.1(b)(i)-(ii) of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 5 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Australian Nursing and Midwifery Federation and the Health Services Union being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they wish to be covered by the Agreement. In accordance with s.201(2) I note that the Agreement covers the organisations.

The Agreement is approved and in accordance with s.54, will operate from 20 April 2022. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The applicants, Aboriginal Community Elders Services Incorporated, sought the court's approval for the Enterprise Agreement 2021 between themselves, the Australian Nursing and Midwifery Federation, and the Health Workers' Union. The dispute centred around the fairness and appropriateness of the agreement's terms, particularly in light of the unique circumstances and needs of the Aboriginal community they serve. The case was heard in the Fair Work Commission, a body with specific jurisdiction to oversee and approve enterprise agreements under Australian labour law.

The central legal issues before the Commission were whether the terms of the agreement were genuinely negotiated and whether they provided for fair and reasonable working conditions. The Commission had to consider the specific context of the Aboriginal community, including cultural considerations, and whether the agreement reflected a genuine attempt to balance the needs of the employees and the organisation. The Commission also examined if the agreement complied with relevant labour laws and standards.

In delivering its decision, the Commission found that the agreement was genuinely negotiated and contained terms that were fair and reasonable. It acknowledged the unique position of the Aboriginal community and recognised the need for cultural sensitivity in the workplace. The Commission determined that the agreement provided for appropriate working conditions, taking into account the specific circumstances of the parties involved. As a result, the Commission approved the Enterprise Agreement 2021.

The Fair Work Commission granted approval for the Enterprise Agreement 2021 between Aboriginal Community Elders Services Incorporated, the Australian Nursing and Midwifery Federation, and the Health Workers' Union. The Commission found that the agreement was genuinely negotiated, provided for fair and reasonable working conditions, and reflected the unique needs of the Aboriginal community.

Aboriginal Community Elders Services Incorporated

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established