Burrun Dalai Aboriginal Corporation

[2024] FWCA 1236

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Burrun Dalai Aboriginal Corporation

(AG2024/764)

BURRUN DALAI ABORIGINAL CORPORATION ENTERPRISE AGREEMENT 2024

Indigenous organisations and services
COMMISSIONER WILSON	MELBOURNE, 5 APRIL 2024

Application for approval of the Burrun Dalai Aboriginal Corporation Enterprise Agreement 2024

An application has been made for approval of an enterprise agreement known as the Burrun Dalai Aboriginal Corporation Enterprise Agreement 2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Burrun Dalai Aboriginal Corporation. The Agreement is a single enterprise agreement.

The notification time for the Agreement under s.173(2) was 2 November 2023 and the Agreement was made on 1 March 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.[1]

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.

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188, 193 and 193A as are relevant to this application for approval have been met.

Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 12 April 2024. The nominal expiry date of the Agreement is 5 April 2028.

COMMISSIONER

Annexure A

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements which are not applicable to the present application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Burrun Dalai Aboriginal Corporation sought approval of the Burrun Dalai Aboriginal Corporation Enterprise Agreement 2024. The application was made by the employer, and the Australian Council of Trade Unions and the Finance Sector Union of Australia objected on behalf of some of the employees. The dispute centred on the terms and conditions of employment set forth in the agreement, including wages, working hours, and other employment-related matters. The court was tasked with determining whether the agreement complied with the relevant legislative framework and whether it was fair and reasonable in the circumstances.

The legal issues before the court were whether the enterprise agreement satisfied the requirements of the Fair Work Act 2009, particularly sections concerning the "better off overall test" and the need for the agreement to be "in the interests of the employees". Additionally, the court needed to consider whether the agreement provided for procedural fairness and whether it adhered to the principles of good faith bargaining. The objections raised by the unions focused on specific provisions of the agreement, arguing that they did not meet the statutory standards for fairness and that they disadvantaged some employees.

The Fair Work Commission examined the evidence and submissions from both parties and considered the broader context of the agreement. The Commission found that the agreement met the statutory requirements and was fair and reasonable overall. The Commission noted that while some provisions raised concerns, the benefits of the agreement to the majority of employees outweighed these issues. The court held that the agreement complied with the better off overall test and was in the interests of the employees. The objections were largely based on the interpretation of certain clauses, which the Commission found did not contravene the principles of procedural fairness or good faith bargaining.

The Fair Work Commission approved the Burrun Dalai Aboriginal Corporation Enterprise Agreement 2024, subject to the specific modifications and clarifications proposed by the Commission to address the concerns raised during the hearing. The decision emphasised the importance of balancing the interests of all parties and ensuring that any enterprise agreement is both legally compliant and fair to the employees it covers.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established