Central Australian Aboriginal Family Legal Unit Aboriginal Corporation

[2025] FWC 1367

[2025] FWC 1367

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Central Australian Aboriginal Family Legal Unit Aboriginal Corporation

(AG2025/1190)

DEPUTY PRESIDENT DOBSON BRISBANE, 16 MAY 2025

Application for approval of the Central Australian Aboriginal Family Legal Unit Aboriginal Corporation (CAAFLU) Enterprise Bargaining Agreement 2025 – Agreement does not pass the better off overall test despite undertakings – application dismissed.

1. This decision deals with an application made for approval of an enterprise agreement known as the Central Australian Aboriginal Family Legal Unit Aboriginal Corporation (CAAFLU) Enterprise Bargaining Agreement 2025 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Central Australian Aboriginal Family Legal Unit Aboriginal Corporation (the Applicant). The Agreement is a single enterprise agreement.

1. The Agreement contains a number of terms that are less beneficial than the Award that would otherwise apply to employees proposed to be covered by it. Further, the Agreement does not provide sufficient benefit to offset all of the detriments specifically in relation to Time in Lieu for Overtime and the provision of meals or meal allowances. Having provided the Applicant with a number of opportunities to resolve my concerns, I do not consider that the Agreement passes the Better Off Overall Test (BOOT).

Time in Lieu for Overtime

1. The Agreement provides for full time and part time employees to work time in lieu for overtime (TOIL). It provides that the time can be taken off on a time for time basis, that is not at overtime rates however it does not provide the following benefits that employees are entitled to under the relevant award:

(a)   The right to have TOIL paid out at the overtime rate at which it was worked at any time upon request;[1]

(b)   A written agreement between the employer and employee, free of undue influence or pressure to accrue TOIL instead of being paid for overtime;[2] and

(c)   Automatic payout of accrued TOIL after 3 months paid at the overtime rate at which it was worked.[3]

There is insufficient benefit in the Agreement to offset this detriment.

Meals or Meal Allowances

1. The Agreement fails to provide for the provision of meals or a meal allowance in certain circumstances where overtime is worked.[4] There is insufficient benefit in the Agreement to offset this detriment.

Other Issues

1. The Notice of Employee Representational Rights (NERR) distributed to employees appears to have a different name for the Agreement to that which was eventually made. I would otherwise have been satisfied that the Agreement would have been genuinely agreed to but for the minor procedural departure from the prescribed form requirements of the NERR under s.174(1A) of the Act and that the employees covered by the Agreement were not likely to have been disadvantaged by this. Accordingly, I would have exercised the discretion conferred by s.188(5) of the Act.[5]

1. The Agreement does not contain a model flexibility term compliant with the Act. Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 would have been taken to be a term of the Agreement.

1. I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

   i.Clause 2.10 – Abandonment

   ii.Clause 5.2 – Personal and carers leave.

   iii.Clause 5.5.5 – Cashing out of annual leave

However, noting clause 1.7 of the Agreement, I would otherwise have been satisfied that the more beneficial entitlements of the NES would have prevailed where there is an inconsistency between the Agreement and the NES.

1. Correspondence was sent to the Employer by my Chambers on 30 April 2025 raising a number of concerns including about circumstances where employees would be recalled to work, roster changes, client cancellations, broken shifts, sleepovers, 24 hour care, excursions, remote work, the wearing of clothing other than uniforms, the use of personal telephones, exposure to heat, being on-call and any requirement to have meals with a client or clients as part of the normal work routine or client program, The Applicant submitted that it was not reasonably foreseeable that any of these entitlements would be triggered and therefore, that the BOOT could be satisfied. Should the Agreement had otherwise met the BOOT, I might have considered it appropriate to find that I was satisfied that per s. 193A(6A) of the Act no detriment would be afforded to those lesser conditions on the basis that it would not be reasonably foreseeable for the purposes of s.193A(6) of the Act and the better off overall test, that such entitlements would be triggered and I would have noted that should this change that pursuant to s.227A of the Act, an application may be made for the future reconsideration of whether the agreement passes the BOOT during the life of the Agreement.

1. The Agreement does not contain a delegates’ rights term, pursuant to s.205A, and if the Agreement was approved, I would have found that the relevant term in the relevant modern award would have applied.

1. The Applicant has provided written undertakings.

1. The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

1. Having considered the undertakings, I have formed the view that, despite those undertakings, the Agreement would result in a financial detriment to employee’s covered by it and the undertakings are insufficient to satisfy my concerns about the BOOT.

1. The Australian Municipal, Administrative, Clerical and Services Union (ASU) lodged a Form F18 statutory declaration giving notice under s.183 of the Act that it wanted the Agreement to cover it. In accordance with s.201(2) of the Act, if the Agreement had been approved, I would have otherwise noted that it covers the ASU.

1. The application for the approval of the Agreement is dismissed.

DEPUTY PRESIDENT

[1] Social, Community, Home Care and Disability Services Industry Award 2010 (SCHADS) Cl.28.2(e).

[2] Ibid at (h).

[3] Ibid at (f).

[4] Ibid at cl.20.5.

[5] Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[2019] FWCFB 318 [117].

Printed by authority of the Commonwealth Government Printer

<PR787379>