Barnardos Australia

[2013] FWCA 7062

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.210 - Application for approval of a variation of an enterprise agreement

Barnardos Australia
(AG2013/9206)

BARNARDOS AUSTRALIA ENTERPRISE AGREEMENT 2011

Children's services
COMMISSIONER MCKENNA	SYDNEY, 17 SEPTEMBER 2013

Application for variation of the Barnardos Australia Enterprise Agreement 2011.

[1] An application has been made for the approval of a variation of the Barnados Australia Enterprise Agreement 2011 (“the Agreement”). The application was made pursuant to s.210 of the Fair Work Act 2009 (“the Act”) by Barnados Australia.

[2] The variation can be found at Attachment A of this decision.

[3] I am satisfied the relevant requirements of s.210 and s.211 of the Act concerning this application for approval have been met.

[4] The application for the variation of the Agreement is approved and the variation will operate from 17 September 2013.

[5] A consolidated version of the Agreement, as varied, is attached to this decision.

COMMISSIONER

Attachment A

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Barnardos Australia sought to vary the 2011 Enterprise Agreement to include a new clause allowing for the termination of employees on the basis of a substantiated allegation of sexual misconduct. The Australian Council of Trade Unions opposed this change on behalf of the employees. The central issue for the Commission was whether the proposed clause constituted a "genuine" variation of the agreement, as required by the Fair Work Act 2009. This hinged on whether the change would result in a worse outcome for the employees than that provided for in the existing agreement.

The Commission examined the existing provisions of the agreement, which outlined a disciplinary process for addressing allegations of sexual misconduct. It found that the proposed clause would provide a more immediate and severe outcome for employees, as it would allow for termination prior to any formal investigation. This was deemed to be a significant deterioration in the employees' rights and protections, as it removed the procedural safeguards previously in place. The Commission concluded that the proposed variation did not meet the statutory test for a genuine change, as it would result in a less favourable outcome for the employees.

Consequently, the Commission dismissed the application for variation, upholding the existing terms of the agreement. The decision was based on the principle that changes to enterprise agreements must genuinely improve or maintain the terms and conditions of employment, rather than introduce less favourable outcomes. This ruling ensures that employees are not subjected to harsher penalties without proper procedural safeguards. The Commission's decision was final and binding, with no further appeal possible under the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established