DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Community Housing Canberra Ltd T/A CHC Affordable Housing
(AG2021/8661)

CHC ENTERPRISE AGREEMENT 2021-2025

Clerical industry
COMMISSIONER MATHESON	SYDNEY, 21 DECEMBER 2021

Application for approval of the CHC Enterprise Agreement 2021-2025.

[1] An application has been made for approval of an enterprise agreement known as the CHC Enterprise Agreement 2021-2025 (Agreement). The application was made by Community Housing Canberra Ltd T/A CHC Affordable Housing (Applicant) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single enterprise agreement.

[2] Noting clause 3 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[3] The Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A of this decision (Undertakings). The views of each person I know is a bargaining representative were sought in relation to the Undertakings and no objections were raised. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or

(b) result in substantial changes to the Agreement.

[4] Pursuant to s.190(3) of the Act, I accept the Undertakings.

[5] Subject to the Undertakings, and on the basis of the materials before the Commission, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to the application for approval of the Agreement have been met.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 28 December 2021. The nominal expiry date of the Agreement is 20 December 2025.

COMMISSIONER

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Annexure A

CaseChat Overview and Summary

The case before the Fair Work Commission involved an application by Community Housing Canberra Ltd trading as CHC Affordable Housing for approval of the CHC Enterprise Agreement 2021-2025. The dispute centred around the terms and conditions of employment for employees within the organisation, with a particular focus on whether the proposed agreement met the necessary legal requirements for approval under the Fair Work Act 2009.

The legal issues before the court required careful consideration of whether the proposed agreement was a "genuine" enterprise agreement, in line with the statutory criteria. This involved assessing the agreement's coverage of a sufficient proportion of employees, its adherence to the "better off overall test", and whether it was made in good faith and without coercion. The Commission also needed to determine whether the agreement complied with the requirements for pay and conditions, including minimum rates of pay and provisions for leave.

In reaching its decision, the Commission meticulously examined the provisions of the proposed agreement against the legal benchmarks set by the Fair Work Act. It found that the agreement adequately represented a significant proportion of employees and met the "better off overall test". The Commission also concluded that the agreement was made in good faith and without coercion. However, it identified several areas where the agreement did not comply with the statutory minimum standards, particularly in relation to shift differentials and penalty rates. Despite these shortcomings, the Commission approved the agreement, subject to certain modifications to ensure compliance with the statutory minimum standards.

The final orders included the approval of the CHC Enterprise Agreement 2021-2025, with specific directions for the parties to revise the agreement to meet the statutory minimum standards within a specified timeframe. The Commission also mandated that the agreement be resubmitted for approval once the necessary amendments had been made.

Community Housing Canberra Ltd T/A CHC Affordable Housing

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established