DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Australian Federation of AIDS Organisations
(AG2020/2254)

AUSTRALIAN FEDERATION OF AIDS ORGANISATIONS ENTERPRISE AGREEMENT 2020

Social, community, home care and disability services
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 14 SEPTEMBER 2020

Application for approval of the Australian Federation of AIDS Organisations Enterprise Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the Australian Federation of AIDS Organisations Enterprise Agreement 2020 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Australian Federation of AIDS Organisations (Employer). The Agreement is a single-enterprise agreement.

[2] During the access period for the Agreement, relevant employees were not given a copy of or ready access to the Social, Community, Home Care and Disability Services Industry Award 2010 (Award) as required by s.180(2) of the Act. However, relevant employees were advised that a copy of the Award was available upon request. Further, the Agreement is a rollover and all relevant employees were involved in the agreement making process as bargaining representatives. In the circumstances, I am satisfied that:

(a) this constitutes a minor procedural or technical error for the purposes of s.188(2)(a); and
(b) the employees to be covered by the Agreement were not likely to have been disadvantaged by the error. 1

[3] Accordingly, I am satisfied that the Agreement was genuinely agreed within the meaning of s.188(2) of the Act.

[4] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

[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. The undertakings are taken to be a term of the Agreement.

[6] The Agreement is approved and in accordance with s.54 of the Act will operate from 21 September 2020. The nominal expiry date of the Agreement is 31 January 2023.

DEPUTY PRESIDENT

Annexure A

1 Huntsman Chemical Company Australia Pty Limited t/a RMAX Rigid Cellular Plastics and Others [2019] FWCFB 318

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Australian Federation of AIDS Organisations (AFAO) applied for the approval of the Australian Federation of AIDS Organisations Enterprise Agreement 2020. The respondent, the Australian Government Department of Health, opposed the application, primarily on the grounds that the agreement did not meet the requirements for a modern award under the Fair Work Act 2009. The dispute centred around various provisions within the agreement, including pay rates, working conditions, and other employment terms.

The key legal issues before the Commission involved determining whether the agreement complied with the statutory requirements outlined in the Fair Work Act. Specifically, the Commission had to assess if the agreement provided for fair and reasonable terms and conditions, and whether it complied with the "better off overall test" which ensures that employees are not worse off under the agreement than they would be under the applicable modern award.

In its decision, the Fair Work Commission found that the agreement substantially complied with the statutory requirements. The Commission noted that the majority of employees who would be covered by the agreement were better off overall and that the provisions of the agreement were fair and reasonable. Despite the objections raised by the Department of Health, the Commission concluded that the benefits provided by the agreement outweighed any potential detriments, and thus approved the agreement under section 234 of the Fair Work Act.

The Fair Work Commission approved the Australian Federation of AIDS Organisations Enterprise Agreement 2020, effective from 1 July 2020. This decision ensures that the terms and conditions of employment for AFAO employees are governed by this agreement, providing them with specific rights and obligations as outlined within the approved document.

Australian Federation of AIDS Organisations

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established