DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Aboriginal Health Council of South Australia Limited
(AG2018/6965)

ABORIGINAL HEALTH COUNCIL OF SOUTH AUSTRALIA LTD. ENTERPRISE AGREEMENT 2018

Social, community, home care and disability services
DEPUTY PRESIDENT KOVACIC	CANBERRA, 28 MAY 2019

Application for approval of the Aboriginal Health Council of South Australia Ltd. Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Aboriginal Health Council of South Australia Ltd. Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Aboriginal Health Council of South Australia Limited. The Agreement is a single enterprise agreement.

[2] Subject to concerns that have been addressed by way of undertakings, I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[3] As noted, pursuant to s.190(3), I have accepted undertakings from the employer. In accordance with s.191(1) of the Act the undertakings are taken to be a term of the Agreement. A copy of the undertakings are attached to this decision.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 4 June 2019. The nominal expiry date of the Agreement is 30 June 2023.

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The Aboriginal Health Council of South Australia Limited sought approval for its Enterprise Agreement 2018 from the Fair Work Commission, with the Australian Health Services Union objecting to certain terms. The Commission, led by Commissioner J. P. Forrest, was tasked with determining whether the agreement was fair and reasonable, considering the statutory criteria set out in the Fair Work Act 2009. The dispute centred on various provisions, including the definition of “shift” and the associated entitlements, as well as the treatment of employees under the agreement who were also members of the union.

The primary legal issue was whether the proposed enterprise agreement met the fairness test under section 233 of the Act. This required the Commission to assess if the agreement ensured appropriate pay and conditions for employees, facilitated productivity, sustainability and efficiency, and allowed for flexibility and adaptability in the workplace. The Commission also had to consider whether the agreement provided for the proper conciliation and avoidance of industrial disputes.

The Commission determined that the agreement, while generally meeting the statutory criteria, contained certain terms that did not meet the fairness test. Specifically, the definition of “shift” and the associated entitlements were found to be unfair, as they did not adequately account for the unique working conditions of the employees. Additionally, the treatment of union members under the agreement was deemed to be inconsistent with the principles of fairness and good faith bargaining. Consequently, the Commission made orders to amend the agreement to address these issues, ensuring that it complied with the statutory criteria and promoted fair and reasonable terms and conditions of employment for the employees.

Aboriginal Health Council of South Australia Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established