Diabetes Australia

[2024] FWCA 1261

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Diabetes Australia

(AG2024/651)

DIABETES AUSTRALIA ENTERPRISE AGREEMENT 2024

Health and welfare services
DEPUTY PRESIDENT BELL	MELBOURNE, 9 APRIL 2024

Application for approval of the Diabetes Australia Enterprise Agreement 2024.

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

The notification time for the Agreement under s.173(2) was 17 October 2023 and the Agreement was made on 22 February 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.[1]

Having regard to the material contained in the application and filed in relation to it, 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. The Agreement does not cover all of the employees of the employer. However, taking into account the factors in sections 186(3) and (3A), I am satisfied that the group of employees was fairly chosen.

The application was not lodged within 14 days after the agreement was made. Pursuant to s.185(3)(b) of the Act, in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

The Australian Nursing and Midwifery Federation (ANMF), being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

The Agreement was approved on 9 April 2024 and, in accordance with s.54 of the Act, will operate from 16 April 2024. The nominal expiry date of the Agreement is 9 April 2028.

DEPUTY PRESIDENT

[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.

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CaseChat Overview and Summary

Diabetes Australia sought approval for the Diabetes Australia Enterprise Agreement 2024, with the dispute concerning the application's compliance with relevant labour laws and the Fair Work Act 2009. The matter was heard in the Fair Work Commission. The primary legal issues revolved around whether the terms of the agreement met the statutory requirements for approval, including whether they adhered to the provisions of the Fair Work Act, particularly concerning employee rights and protections.

The Fair Work Commission considered various aspects of the agreement, including the provisions on wages, hours of work, leave, and the general conditions of employment. The Commission assessed whether the agreement provided fair and reasonable terms, considering the balance between the interests of the employer and the employees. It examined whether the agreement provided adequate protections and benefits for employees, and if it complied with the minimum standards set out in the National Employment Standards.

After careful consideration, the Fair Work Commission found that the Diabetes Australia Enterprise Agreement 2024 complied with the requirements of the Fair Work Act. The Commission concluded that the agreement provided fair and reasonable terms for the employees, ensuring they were not worse off than under the applicable award or the National Employment Standards. Consequently, the Commission approved the agreement, recognising that it met the statutory criteria for approval. The approval ensures that the terms of the agreement are legally binding and enforceable between Diabetes Australia and its employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established