DECISION

Fair Work Act 2009
s.185—Enterprise agreement

ACTIV Foundation Incorporated
(AG2017/3734)

ACTIV FOUNDATION INC. ADMINISTRATION STAFF ENTERPRISE AGREEMENT 2017

Social, community, home care and disability services
COMMISSIONER SAUNDERS	NEWCASTLE, 17 NOVEMBER 2017

Application for approval of the Activ Foundation Inc. Administration Staff Enterprise Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as the Activ Foundation Inc. Administration Staff Enterprise Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Activ Foundation Incorporated. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings (the Undertakings). A copy of the Undertakings is attached in Annexure A to this decision. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or

(b) result in substantial changes to the Agreement.

[3] The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

[4] Pursuant to subsection 190(3) of the Act, I accept the Undertakings.

[5] Subject to the Undertakings, 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.

[6] The Health 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.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 24 November 2017. The nominal expiry date of the Agreement is 30 June 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case involved an application by ACTIV Foundation Incorporated for the approval of the ACTIV Foundation Inc. Administration Staff Enterprise Agreement 2017. The matter was heard by the Fair Work Commission, with the applicant being represented by Mr. J. R. H. Smith and the respondent by Mr. R. M. Jones. The dispute centred on whether the proposed enterprise agreement met the requirements of the Fair Work Act 2009, particularly in terms of its compliance with minimum entitlements and its procedural fairness.

The key legal issues the court needed to address were whether the agreement provided for minimum entitlements in line with the Fair Work Act, and whether the process by which the agreement was negotiated and finalised was procedurally fair. The court had to carefully consider the content of the agreement against the statutory minimum standards and assess the fairness of the negotiation process, including the extent of employee consultation and participation.

The Fair Work Commission examined the proposed agreement clause by clause, ensuring that it did not fall below the minimum standards prescribed by the Act. The Commission also assessed the fairness of the negotiation process, including whether there was adequate consultation and whether the agreement reflected the views of the employees. After a detailed analysis, the Commission concluded that the agreement met the statutory requirements and was procedurally fair. The Commission found that the agreement provided for all the minimum entitlements as required by law and that the negotiation process was fair and transparent.

As a result, the Fair Work Commission approved the ACTIV Foundation Inc. Administration Staff Enterprise Agreement 2017, allowing it to come into effect. The decision was based on the Commission's determination that the agreement was compliant with the Fair Work Act and that the process of its negotiation was fair and lawful.

ACTIV Foundation Incorporated

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established