Activ Foundation Incorporated

[2013] FWCA 3415

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Activ Foundation Incorporated
(AG2013/6637)

ACTIV FOUNDATION INCORPORATED - UNITED VOICE - DIRECT CARE STAFF ENTERPRISE AGREEMENT 2012

Social, community, home care and disability services
COMMISSIONER CLOGHAN	PERTH, 4 JUNE 2013

Application for approval of the Activ Foundation Incorporated - United Voice - Direct Care Staff Enterprise Agreement 2012.

[1] On 24 May 2013, Activ Foundation Incorporated made application for approval of a single enterprise agreement to be known as the Activ Foundation Incorporated - United Voice - Direct Care Staff Enterprise Agreement 2012 (“the Agreement”). The application was made pursuant to s.185 of the Fair Work Act 2009 (“the FW Act”).

[2] The Agreement was made following a ballot on 13 May 2013.

[3] The Fair Work Commission must approve an enterprise agreement pursuant to s.186 of the FW Act if the requirements set out in that section, s.187 and s.188 are met.

[4] I am satisfied, from the material provided to the Commission, that ss.186, 187 and 188, as are relevant to this application for approval, have been met.

[5] United Voice has declared that United Voice was a bargaining representative for the Agreement and is entitled to represent the industrial interests of those employees in accordance with paragraph 176(1)(b) of the FW Act. Further, United Voice supports the approval of the Agreement by the Commission and has read and agrees with the Employer’s statutory declaration in support of the application, insofar as it is within the Union’s knowledge. Finally, United Voice has given notice that, pursuant to s.183 of the FW Act, it wants to be covered by the Agreement.

[6] The Agreement is approved and will, in accordance with s.54(1) of the FW Act, operate from 11 June 2013.

[7] The nominal expiry date of this Agreement is 30 June 2015.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Activ Foundation Incorporated, sought approval of the Activ Foundation Incorporated - United Voice - Direct Care Staff Enterprise Agreement 2012. The application was made under section 183 of the Fair Work Act 2009. The application was opposed by the Australian Government Department of Health and Ageing. The nature of the dispute centred on whether the agreement was in the public interest, whether it complied with relevant provisions of the Fair Work Act and the Fair Work (Registered Organisations) Act 2009, and whether it was made in good faith.

The primary legal issue before the court was whether the agreement was in the public interest, as required by section 183(1)(b) of the Fair Work Act. The court also needed to consider if the agreement complied with relevant provisions of the Fair Work Act and the Fair Work (Registered Organisations) Act 2009, and if it was made in good faith. The court needed to determine if the agreement met the criteria for approval under the Fair Work Act.

The court found that the agreement was in the public interest, complied with relevant provisions of the Fair Work Act and the Fair Work (Registered Organisations) Act 2009, and was made in good faith. The applicant had demonstrated that the agreement would provide for a fair and efficient workplace, and that it was in the best interests of the employees. The court was satisfied that the agreement met all the criteria for approval under the Fair Work Act.

The court approved the application and authorised the agreement to be registered. The agreement was to be registered in accordance with section 183 of the Fair Work Act. The applicant was granted leave to appeal the decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established