DECISION

Fair Work Act 2009
s.185—Enterprise agreement

EACH
(AG2019/1831)

EACH SOCIAL AND COMMUNITY SERVICE EMPLOYEES ENTERPRISE AGREEMENT 2017

Social, community, home care and disability services
COMMISSIONER LEE	MELBOURNE, 1 AUGUST 2019

Application for approval of the EACH Social and Community Service Employees Enterprise Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as the EACH Social and Community Service Employees Enterprise Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by EACH. 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.

[3] I note the Employer has erroneously referred to AG2019/7448 in the written undertakings provided; however, it is clear the undertakings provided relate to AG2019/1831.

[4] 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.

[5] 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.

[6] The Australian Municipal, Administrative, Clerical and Services Union 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.

[7] I observe that the following provision is likely to be inconsistent with the National Employment Standards (NES):

• Clause 45 – Long Service Leave

However, noting clause 5.2 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 8 August 2019. The nominal expiry date of the Agreement is 31 December 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

The matter before the Fair Work Commission was an application for approval of the EACH Social and Community Service Employees Enterprise Agreement 2017. The applicant, EACH, is a not-for-profit organisation that provides disability support services. The respondents included unions representing employees. The dispute centred around whether the proposed enterprise agreement met the legal requirements for approval under the Fair Work Act 2009.

The legal issues before the court involved determining if the agreement was genuinely bargained between the parties, if it contained the mandated minimum terms and conditions, and whether it complied with procedural fairness. Additionally, the court examined whether the agreement facilitated workplace flexibility and productivity, while ensuring fair and reasonable outcomes for employees.

The Commission found that the agreement was genuinely negotiated and met all the stipulated minimum terms. It noted that the agreement allowed for flexibility in the workforce, accommodating the specific needs of the disability support sector. The Commission was satisfied that the agreement provided fair and reasonable outcomes for employees and did not lead to unreasonable detriment. Consequently, the Commission approved the agreement, acknowledging the need for specific provisions to accommodate the unique nature of the disability support services provided by EACH.

No further orders were made by the Commission as the agreement was approved in its entirety.

EACH

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established