Australian Volunteers International
[2022] FWCA 2691
•9 AUGUST 2022
| [2022] FWCA 2691 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Australian Volunteers International
(AG2022/2336)
Australian Volunteers International Enterprise Agreement 2022
| Social, community, home care and disability services | |
| DEPUTY PRESIDENT MOLTONI | BRISBANE, 9 AUGUST 2022 |
Application for approval of the Australian Volunteers International Enterprise Agreement 2022
An application has been made for approval of an enterprise agreement known as the Australian Volunteers International Enterprise Agreement 2022 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Australian Volunteers International (the Applicant). The Agreement is a single enterprise agreement.
The Notice of Employee Representational Rights (NERR) distributed to employees has a different name for the proposed agreement to that in the final agreement, however, I am satisfied that the Agreement would have been genuinely agreed to but for this minor procedural departure from the prescribed form requirements of the NERR under s.174(1A) of the Act and that the employees covered by the Agreement were not likely to have been disadvantaged by this. Accordingly, I exercise the discretion conferred by s.188(2) of the Act.
Further there appears to be a typographical error in the name of the Agreement where instead of “2022” it says “022”. The front page of the Agreement has the correct name, and I am satisfied that the Agreement would have been genuinely agreed to but for this minor typographical error in the title definition and that the employees covered by the Agreement were not likely to have been disadvantaged by this. Accordingly, I exercise the discretion conferred by s.188(2) of the Act to correct the Agreement name in the title definition.
The Applicant has provided written undertakings. 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.
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.
Pursuant to s.190(3) of the Act, I accept the undertakings.
Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.
The Agreement does not contain a model flexibility term compliant with the Act. Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.
Noting the undertakings provided, and on the basis of the materials before the Commission, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.
The Australian Municipal, Administrative, Clerical and Services Union (ASU) lodged a Form F18 statutory declaration giving notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note the Agreement covers the ASU.
The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 30 June 2024.
DEPUTY PRESIDENT
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