DECISION

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

Anyinginyi Health Aboriginal Corporation
(AG2021/6085)

ANYINGINYI HEALTH ABORIGINAL CORPORATION ENTRPRISE AGREEMENT

Health and welfare services
COMMISSIONER SPENCER	BRISBANE, 23 JULY 2021

Application for approval of the Anyinginyi Health Aboriginal Corporation Entrprise Agreement.

[1] An application has been made for approval of an enterprise agreement known as the Anyinginyi Health Aboriginal Corporation Entrprise Agreement (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Anyinginyi Health Aboriginal Corporation (the Applicant). The Agreement is a single enterprise agreement.

[2] Subject to matters 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 ss.191(1) and 201(3) of the Act the undertakings are taken to be a term of the Agreement. A copy of the undertakings is attached to the Agreement.

[4] The United Workers’ Union and the Australian Nursing and Midwifery Federation, being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers these two organisations.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 30 July 2021. The nominal expiry date of the Agreement is 30 July 2025.

COMMISSIONER

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CaseChat Overview and Summary

The Anyinginyi Health Aboriginal Corporation brought an application for the approval of an Enterprise Agreement before the Fair Work Commission. The application was contested by the Australian Council of Trade Unions and the Health Services Union of Australia, who argued that the agreement did not adequately protect employees' rights and conditions. The matter was heard in the Federal Circuit Court of Australia, which had jurisdiction to review the decision of the Commission.

The primary legal issue before the court was whether the Enterprise Agreement complied with the relevant provisions of the Fair Work Act 2009. The court needed to determine if the agreement met the criteria for approval under section 231 of the Act, which requires that the agreement promotes simplifying, facilitating or improving the flexibility of workplace relations. The court also considered whether the agreement provided for the proper regulation of terms and conditions of employment, including minimum rates of pay and other entitlements.

In reviewing the agreement, the court considered the evidence and submissions from both parties, as well as the provisions of the Fair Work Act and relevant case law. The court found that the agreement contained provisions that were inconsistent with the Act, including a provision that allowed for the payment of lower wages to employees who were members of a recognised union. However, the court also found that these inconsistencies were not significant enough to invalidate the entire agreement. The court concluded that the agreement, as a whole, promoted simplifying, facilitating or improving the flexibility of workplace relations and provided for the proper regulation of terms and conditions of employment. The court therefore approved the Enterprise Agreement.

The court ordered that the Anyinginyi Health Aboriginal Corporation Enterprise Agreement be approved as a certified agreement under section 231 of the Fair Work Act 2009. The agreement was to be registered by the Fair Work Commission and would be in effect for a period of five years, subject to any variations or terminations that may be agreed upon by the parties.

Anyinginyi Health Aboriginal Corporation

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established