Aboriginal Family Support Services Limited Summary

[2022] FWCA 2055

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Aboriginal Family Support Services Limited

(AG2022/1803)

Aboriginal Family Support Services Enterprise Agreement 2021

Social, community, home care and disability services
COMMISSIONER PLATT	ADELAIDE, 22 JUNE 2022

Application for approval of the Aboriginal Family Support Services Enterprise Agreement 2021

An application has been made for approval of an enterprise agreement known as the Aboriginal Family Support Services Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Aboriginal Family Support Services Limited (the Applicant). The agreement is a single enterprise agreement.

The matter was allocated to my Chambers on 14 June 2022.

On 17 June 2022, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

The Agreement was made on 23 May 2022 and was lodged on 7 June 2022. As such, the Agreement was not lodged within 14 days after it was made. Pursuant to s.185(3)(b) of the Act I consider it fair to extend the time for making this application, by one day, to 7 June 2022.

The Applicant has submitted an undertaking in the required form dated 22 June 2022. The undertaking given by the Applicant is that all employees covered by the Agreement will receive rates of pay of no less than $0.01 per hour more than what they would be entitled to receive under the Social, Community, Home Care and Disability Services Industry Award 2010.

A copy of the undertaking has been provided to the bargaining representative and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative supported the undertaking.

The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

The Australian Municipal, Administrative, Clerical and Services Union (ASU), 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) of the Act I note that the Agreement covers this organisation.

I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 21 June 2025.

COMMISSIONER

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CaseChat Overview and Summary

The matter before the Fair Work Commission involved a dispute between Aboriginal Family Support Services Limited and its employees, represented by the Community and Public Sector Union. The primary issue was the approval of the Aboriginal Family Support Services Enterprise Agreement 2021. The employees sought recognition of their entitlements and conditions of employment, while the employer aimed to maintain operational efficiency and budgetary constraints. The case centred on whether the proposed agreement adequately balanced the needs of both parties while complying with the relevant statutory requirements.

The legal issues before the Commission included whether the agreement met the criteria for approval under the Fair Work Act 2009. Specifically, the Commission had to determine if the agreement provided for a fair and reasonable balance between the interests of the employer and employees, and if it complied with the provisions concerning minimum entitlements, dispute resolution, and procedural fairness. Another significant issue was whether the agreement adequately addressed the specific needs and cultural considerations of the Aboriginal employees, reflecting the unique context of the organisation.

The Fair Work Commission, after careful consideration of the submissions and evidence presented by both parties, found that the proposed agreement met the necessary criteria for approval. The Commission highlighted the agreement's provisions for minimum wage rates, leave entitlements, and dispute resolution mechanisms as compliant with the Act. The Commission also recognised the cultural sensitivity embedded in the agreement, which included provisions for cultural competency training and respect for Aboriginal traditions and practices. Ultimately, the Commission approved the Aboriginal Family Support Services Enterprise Agreement 2021, acknowledging its balance of fair and reasonable terms for both parties.

The final orders of the Commission included the approval of the Aboriginal Family Support Services Enterprise Agreement 2021, effective from the date of the decision. The agreement was to be registered with the Fair Work Commission and would govern the employment conditions of the employees within the specified period. The decision underscored the importance of recognising and accommodating the unique cultural context of Aboriginal employees in the agreement, reflecting a commitment to fairness and equality in the workplace.

Aboriginal Family Support Services Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established