Aboriginal Health Council of South Australia Limited

[2023] FWCA 749

[2023] FWCA 749

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Aboriginal Health Council of South Australia Limited

(AG2023/243)

Aboriginal Health Council of SA Enterprise Agreement 2023

Indigenous organisations and services
COMMISSIONER HUNT	BRISBANE, 9 MARCH 2023

Application for approval of the Aboriginal Health Council of SA Enterprise Agreement 2023

1. The Aboriginal Health Council of South Australia Limited (the Employer) has applied for approval of an enterprise agreement known as the Aboriginal Health Council of SA Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act).  The Agreement is a single-enterprise agreement.

1. The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with the Employer, and as a result, the Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A.  Pursuant to s.190(4) of the Act, I sought the views of the bargaining representatives regarding the undertakings, allowing a period of two business days from receipt of the undertakings to provide any views. 

1. 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.190 of the Act, I accept the undertakings.  In accordance with s.201(3) of the Act, I note that the undertakings are taken to be a term of the Agreement.

1. The Agreement declares that it will operate from the first full pay period on or after 1 July 2023.  I note that a current enterprise agreement, Aboriginal Health Council of South Australia Ltd. Enterprise Agreement 2018 [[2019] FWCA 3610] currently binds the parties.  The 2018 agreement was approved on 28 May 2019, declaring that it came into effect on 4 June 2019, despite clause 1.3.1 of the Agreement declaring it would come into effect from the first full pay period on or after 1 July 2019.  The decision also declared that the nominal expiry date of the 2018 agreement is 30 June 2023.  By virtue of s.186(5)(b) of the Act, the nominal expiry date cannot be any later than 28 May 2023, that being not more than four years after the day on which the Commission approves the agreement.

1. Regrettably, if an employer wishes to impose dates within an agreement and then seek early approval of an agreement, it may cause some difficulties relative to particular sections of the Act, particularly with respect to operative dates and then a four-year maximum nominal expiry period from the date the agreement is approved.  The reference to the 2018 agreement’s nominal expiry date of 30 June 2023 ought to be treated as an inadvertent error.

1. The contract made between the parties is that the Agreement will operate from the first full pay period on or after 1 July 2023.  I must give effect to the terms of the Agreement as that is what is made between the Employer and the employees covered by it. Accordingly, the Agreement will operate from the first full pay period on or after 1 July 2023, as permitted by s.54(1)(b) of the Act.  

1. Whilst it is noted that there now appears to be a window between 28 May 2023 when the 2018 agreement reaches its nominal expiry date, and the first full pay period on or after 1 July 2023 when the Agreement comes into operation, unless a party seeks termination of the 2018 agreement, it will continue to apply until this Agreement comes into operation.  It appears to me any such application being sought and determined in such a short window would be unlikely and should not be of concern to any of the parties covered by the 2018 agreement.

1. I have taken into consideration the material filed in the Commission. 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.  The Agreement does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

1. The Agreement is approved.  Pursuant to s.186(5)(b), the nominal expiry date of the Agreement is 9 March 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE519437  PR760146>

Annexure A – Undertakings