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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Autism Queensland Limited [2020] FWCA 2060
Case: [2020] FWCA 2060
Decision Date: 24 APRIL 2020

CaseChat Overview and Summary

Autism Queensland Limited sought approval of the Autism Queensland Limited Employee Agreement 2020, which had been made after negotiations with the union. The application was brought before the Fair Work Commission under the Fair Work Act 2009. The union opposed the application, arguing that the agreement contained terms which were less favourable to employees than the applicable award or the National Employment Standards. The union further submitted that the agreement had not been made in good faith.

The Commission considered whether the agreement was procedurally and substantively valid. Procedurally, the Commission found that the agreement was made in good faith, as there was evidence of genuine negotiations between the parties. However, the Commission found that some of the terms in the agreement were less favourable to employees than the applicable award or the National Employment Standards, and therefore not substantively valid. The Commission noted that the parties had not been able to reach agreement on certain issues, and that the employer had imposed certain terms without reaching a compromise. The Commission ultimately decided that the agreement was not fair and could not be approved.

The Commission ordered that the application for approval of the agreement be dismissed. The Commission further ordered that the agreement would not be registered and would not have effect from the date of the decision. The Commission noted that the employees affected by the agreement would continue to be covered by the applicable award or the National Employment Standards. The decision provides guidance on the requirements for approving an enterprise agreement, and the importance of good faith negotiations between employers and employees.

Orders