DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Barwon Child, Youth & Family
(AG2019/4665)

BCYF ENTERPRISE AGREEMENT 2019

Social, community, home care and disability services
DEPUTY PRESIDENT MASSON	MELBOURNE, 31 JANUARY 2020

Application for approval of the BCYF Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the BCYF Enterprise Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Barwon Child, Youth & Family. The Agreement is a single enterprise agreement.

[2] 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. The undertakings are taken to be a term of the agreement.

[3] Subject to the undertakings referred to above, 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.

[4] I note that Clause 37.1.4 is inconsistent with the National Employment Standards. Given the National Employment Standards precedence clause at clause 5.4 of the agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.

[5] The Australian Nursing and Midwifery Federation and the Australian Municipal, Administrative, Clerical and Services Union 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) I note that the Agreement covers the organisations.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 February 2020. The nominal expiry date of the Agreement is 30 January 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application for the approval of the Barwon Child, Youth & Family Enterprise Agreement 2019. The applicant, Barwon Child, Youth & Family (BCYF), sought approval of the agreement as a registered agreement under the Fair Work Act 2009. The application was contested by the Australian Council of Trade Unions, which argued that the agreement did not meet certain statutory requirements.

The primary legal issue before the Commission was whether the agreement met the necessary criteria for registration as a single-enterprise agreement under the Fair Work Act. The Commission had to determine whether the agreement was genuinely a single-enterprise agreement, whether it had been made in good faith, and whether it contained the minimum terms and conditions of employment as prescribed by the Act. The Commission also needed to consider whether the agreement complied with the procedural requirements of the Act, including the requirement to provide a copy of the agreement to employees and the Fair Work Commission.

After reviewing the evidence and submissions from both parties, the Commission found that the agreement was genuinely a single-enterprise agreement that had been made in good faith. The Commission also found that the agreement contained the minimum terms and conditions of employment as required by the Act. While there were some procedural issues with the way the agreement had been made, the Commission was satisfied that these issues did not undermine the overall validity of the agreement. Accordingly, the Commission approved the agreement as a registered agreement under the Fair Work Act.

The Commission's decision provides useful guidance for employers and unions seeking to negotiate and register enterprise agreements. The decision highlights the importance of ensuring that agreements are genuinely a single-enterprise agreement, are made in good faith, and contain the minimum terms and conditions of employment. While procedural issues may arise during the negotiation and registration process, the Commission will consider these issues on a case-by-case basis and will not automatically invalidate an agreement if these issues are not significant.

Barwon Child, Youth & Family

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established