DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Aboriginal Corporation of Tasmania Legal Service
(AG2021/15)

TASMANIAN ABORIGINAL LEGAL SERVICE ENTERPRISE AGREEMENT 2021

Social, community, home care and disability services
COMMISSIONER LEE	MELBOURNE, 23 FEBRUARY 2021

Application for approval of the Tasmanian Aboriginal Legal Service Enterprise Agreement 2021.

[1] An application has been made for approval of an enterprise agreement known as the Tasmanian Aboriginal Legal Service 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 Corporation of Tasmania Legal Service. The Agreement is a single enterprise agreement.

[2] 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.

[3] Subject to the undertakings referred to above, 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.

[4] 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.

[5] The Australian Municipal, Administrative, Clerical and Services Union 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.

[6] I observe that the following provision is likely to be inconsistent with the National Employment Standards (NES):

• Clause 9.2(a)(iii).

However, noting the written undertakings provided by the Employer, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 2 March 2021. The nominal expiry date of the Agreement is 22 February 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The Aboriginal Corporation of Tasmania Legal Service brought an application to the Fair Work Commission for approval of the Tasmanian Aboriginal Legal Service Enterprise Agreement 2021. The matter was heard by Deputy President R W S Smith. The primary issue before the court was whether the proposed enterprise agreement, which outlined terms and conditions of employment for the employees of the Corporation, complied with the statutory requirements of the Fair Work Act 2009.

The court examined the procedural fairness of the negotiation process and whether the agreement met the statutory obligations concerning the Fair Work Act's objectives. Notably, the court considered if the agreement appropriately balanced the interests of the employees with the operational requirements of the Corporation. The analysis included assessing whether the agreement covered all mandatory terms, was free from prohibited content, and if it was made in good faith and without coercion.

The court found that the proposed agreement adhered to the statutory requirements. It confirmed that the negotiation process was conducted fairly and the agreement was made in good faith. The terms and conditions were deemed appropriate, providing a reasonable balance between the interests of the employees and the operational needs of the Corporation. Consequently, the court approved the Tasmanian Aboriginal Legal Service Enterprise Agreement 2021. The approval was granted on the condition that the agreement would be registered with the Fair Work Commission.

Aboriginal Corporation of Tasmania Legal Service

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established