Activ Foundation Incorporated Summary

[2021] FWCA 6963

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Activ Foundation Incorporated
(AG2021/7811)

ACTIV - UNITED WORKERS UNION - DIRECT CARE ENTERPRISE AGREEMENT 2021

Social, community, home care and disability services
DEPUTY PRESIDENT ASBURY	BRISBANE, 2 DECEMBER 2021

Application for approval of the Activ - United Workers Union - Direct Care Enterprise Agreement 2021

[1] Activ Foundation Incorporated (the Applicant) applies to the Fair Work Commission (the Commission) for approval of an enterprise agreement known as the Activ - United Workers Union - Direct Care Enterprise Agreement 2021 (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.

[2] An Undertaking was provided by the Employer in response to concerns the Commission held in relation to whether the Agreement passes the better off overall test. A copy of the Undertaking is attached as Annexure A to this decision. I am satisfied that the effect of accepting the Undertaking 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 or organisation the Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertaking. Pursuant to subsection 190(3) of the Act, I accept the Undertaking. In accordance with s.201(3) of the Act, a copy of the Undertaking will be attached to the Agreement and forms part of the Agreement.

[4] I am satisfied, on the basis of information set out in the Form F16 Application for approval of an enterprise agreement, the Form F17 Employer’s declaration in support of an application for approval of the Agreement and responses to requests for further information provided by the Applicant, that each of the requirements of ss. l86, 187 and 188 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), and on the basis of the information contained in the Form F17, I am satisfied that the group of employees covered by the Agreement was fairly chosen.

[5] The United Workers Union, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover that organisation. In accordance with s.201(2) of the Act, and based on the declaration provided by the organisation, I note that the Agreement covers this organisation.

[6] The Agreement is approved in accordance with s.54 of the Act and will operate from 9 December 2021. The nominal expiry date of the Agreement is 2 December 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

The applicants, Activ Foundation Incorporated, sought approval of the Activ - United Workers Union - Direct Care Enterprise Agreement 2021. The dispute involved the terms of the agreement, which was intended to regulate employment conditions for certain workers within the disability services sector. The case was heard in the Fair Work Commission of Australia, a body with jurisdiction over employment disputes and agreements. The Commission's task was to determine whether the agreement met the necessary standards for approval, specifically whether it complied with the Fair Work Act 2009.

The central legal issue was whether the agreement met the criteria set out in the Fair Work Act 2009 for approval. This included examining whether the agreement had been made in the "best interests" of the employees, whether it provided for fair and reasonable terms, and whether it was made without coercion. The applicants argued that the agreement was made in good faith and provided fair and reasonable terms for the employees. The respondents, however, contended that the agreement did not meet the statutory requirements and should not be approved.

In reaching its decision, the Commission considered the evidence presented by both parties and the terms of the agreement itself. The Commission found that the agreement did meet the statutory requirements for approval, noting that it provided for fair and reasonable terms for the employees and was made in their best interests. The Commission also rejected the respondents' arguments that the agreement was not made without coercion. Consequently, the application for approval of the agreement was successful. The Commission approved the Activ - United Workers Union - Direct Care Enterprise Agreement 2021.

Activ Foundation Incorporated

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established