Autism Queensland Limited

[2020] FWCA 2060

[2020] FWCA 2060

FAIR WORK COMMISSION

DECISION

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

Autism Queensland Limited
(AG2020/489)

AUTISM QUEENSLAND LIMITED EMPLOYEE AGREEMENT 2020

Social, community, home care and disability services
COMMISSIONER SPENCER	BRISBANE, 24 APRIL 2020

Application for approval of the Autism Queensland Limited Employee Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the Autism Queensland Limited Employee Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Autism Queensland Limited (the Applicant). The Agreement is a single enterprise agreement.

[2] Mr Paul Giles, Assistant Secretary/Treasurer of the Independent Education Union of Australia – Queensland and Northern Territory Branch (IEU), lodged a Form F18 statutory declaration giving notice under s.183 of the Act that the IEU wants the Agreement to cover it.

[3] Mr Alexander Scott, Branch Secretary of the Australian Municipal, Administrative, Clerical and Services Union, Queensland Together Branch (ASU), lodged a Form F18 statutory declaration advising it supported approval of the Agreement and giving notice under s.183 of the Act that the ASU wants the Agreement to cover it

[4] I identified a number of matters and sought undertakings from the Applicant. These undertakings were provided to my Chambers and all bargaining representatives including the unions on 17 April 2020.

[5] The Full Bench in Construction, Forestry, Maritime, Mining and Energy Union v SRSW Pty Ltd t/a Stellar Recruitment 1held that undertakings provided under s.190 should not facilitate a wholesale reshaping of the agreement. Analogous to the circumstances of the undertakings provided in that matter, I also do not consider that is the case with the undertakings here. Each of the undertakings currently provided has the effect of enhancing employees’ minimum entitlements, addressing concerns regarding the BOOT and the NES, or increasing the quantum of various benefits to employees. I am satisfied on that basis that the undertakings therefore do not bring about substantial change to the agreement.

[6] In CFMMEU v Kaefer Integrated Services Pty Ltd, 2the Full Bench noted that the legislative concern of s.190(3) of the Act was to avoid imposing on employees arrangements that they have not approved, but that employees were not likely to object to higher monetary amounts. The Full Bench notes that the position might be more complex in relation to the reintroduction through undertakings of award-based benefits that were otherwise excluded by the agreement, if this were to have a significant bearing on working arrangements.

[7] Some of the undertakings provided reintroduce to the Agreement terms and conditions that were initially excluded from the Agreement. As an example, undertaking 12 allows that where an employee resigns without providing the proscribed period of notice, and the employer agrees to a shorter period of notice, then no deduction can be made, and further that any deduction from the employee’s wages must not be unreasonable. This undertaking is wholly beneficial to employees, and would not have a significant benefit on working arrangements. While I will not refer to all individual undertakings in this decision, I have considered all the undertakings and consider that they do not have significant bearing on working arrangements such that employees could be considered to have not approved the arrangements. I do not consider that the undertakings provided are contrary to the principles considered by the Full Bench.

[8] 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 and as Annexure A to this Decision.

[9] 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.

[10] The Independent Education Union of Australia and ASU, 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) of the Act I note that the Agreement covers the IEU and ASU.

[11] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 1 May 2020. The nominal expiry date of the Agreement is 24 April 2024.

COMMISSIONER

Annexure A.

 1   [2020] FWCFB 2052

 2   [2017] FWCFB 5630 at [40]

Printed by authority of the Commonwealth Government Printer

<AE507821  PR718427>