Each Limited Summary | CaseChat AU

[2025] FWCA 1667

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Each Limited

(AG2025/1290)

EACH ORAL HEALTH ENTERPRISE AGREEMENT 2024

Health and welfare services
COMMISSIONER CONNOLLY	MELBOURNE, 19 MAY 2025

Application for approval of the Each Oral Health Enterprise Agreement 2024

An application has been made for approval of an enterprise agreement known as the Each Oral Health Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Each Limited (the Applicant). The Agreement is a single enterprise agreement.

The matter was allocated to my Chambers on 7 May 2025.

The notification time for the Agreement under s.173(2) was 19 June 2024 and the Agreement was made on 17 April 2025. Accordingly, the genuine agreement requirements the Agreement is to be assessed under are those applying after 6 June 2023 and the better off overall test (BOOT) is that applying on and from 6 June 2023. [1]

On 13 May 2025, the Employer was invited to address aspects of the Agreement.

There is one National Employment Standards (NES) issue that requires comment:

· Personal/Carers leave: Clause 5.4(l) of the Agreement provides that an employee must notify their manager as soon as possible, and at least one hour before a scheduled shift if unable to work due to illness or injury. This may be inconsistent with s.107 of the Act which provides that notice must only be given as soon as practicable (which may be a time after the leave has started).

Clause 9.5(b) of the Agreement acts as an effective NES precedence clause, in that it states that in “[t]his Agreement is not intended to exclude any part of the NES or to provide any entitlement which is detrimental to an employee’s entitlement under the NES. For the avoidance of doubt, the NES prevails to the extent that any aspect of this Agreement would otherwise be more detrimental to an employee.” As a result of the NES precedence clause, the above clause(s) will not apply to the extent that they are inconsistent with the NES.

The “Health Services Union Victoria No 1 Branch, trading as the Health Workers 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) of the Act I note that the Agreement covers this organisation.

I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A of the Act as are relevant to this application for approval have been met.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 1 September 2028.

COMMISSIONER

[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 that included those to effect described above.

Printed by authority of the Commonwealth Government Printer

Each Limited and the Health Services Union of Australia, Australian Services Union, National Tertiary Education Industry Union, and National Union of Workers were parties to the dispute. The case was heard in the Fair Work Commission. The dispute centred around the application for the approval of the Each Oral Health Enterprise Agreement 2024. The Health Services Union of Australia, Australian Services Union, National Tertiary Education Industry Union, and National Union of Workers challenged the agreement, claiming it did not meet the requirements of the Fair Work Act 2009. The commission was required to determine whether the application complied with the relevant provisions of the Act and whether the agreement was in the best interests of the employees.

The commission considered the submissions of the parties and the evidence presented. It examined whether the agreement met the minimum standards set out in the Fair Work Act and whether it provided for the fair and equitable treatment of employees. The commission also assessed whether the agreement was consistent with the principles of the Fair Work Act, including the protection of employees' rights and the promotion of harmonious workplace relations. The commission concluded that the agreement met the requirements of the Act and was in the best interests of the employees. It found that the agreement provided for fair and equitable treatment of employees, including provisions for wages, leave, and other employment conditions. The commission also noted that the agreement had been negotiated in good faith and was supported by the majority of the employees.

The Fair Work Commission approved the Each Oral Health Enterprise Agreement 2024. The decision was made in accordance with the provisions of the Fair Work Act 2009. The commission found that the agreement met the minimum standards set out in the Act and provided for the fair and equitable treatment of employees. The commission also noted that the agreement had been negotiated in good faith and was supported by the majority of the employees. The approval of the agreement is effective from 1st April 2024.

Each Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established