Employ For Ability Pty Ltd Summary

[2024] FWCA 2065

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Employ For Ability Pty Ltd

(AG2024/1699)

EMPLOY FOR ABILITY ENTERPRISE AGREEMENT 2024

Social, community, home care and disability services
COMMISSIONER WILSON	MELBOURNE, 5 JUNE 2024

Application for approval of the Employ for Ability Enterprise Agreement 2024

An application has been made for approval of an enterprise agreement known as the Employ for Ability Enterprise Agreement 2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Employ For Ability Pty Ltd. The Agreement is a single enterprise agreement.

The notification time for the Agreement under s.173(2) was 2 April 2024 and the Agreement was made on 8 May 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.[1]

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. The undertakings are taken to be a term of the agreement.

Subject to the undertakings referred to above, 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 is approved and, in accordance with s.54 of the Act, will operate from 12 June 2024. The nominal expiry date of the Agreement is 1 May 2028.

COMMISSIONER

Annexure A

[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.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Employ For Ability Pty Ltd was the applicant before the Fair Work Commission seeking approval of the Employ for Ability Enterprise Agreement 2024. The application concerned the proposed enterprise agreement between the applicant and its employees, and the primary issue was whether the agreement met the statutory requirements for approval under the Fair Work Act 2009. The dispute arose from the applicant's desire to finalise the terms and conditions of employment for its workforce as per the proposed agreement, which was contested by some employee representatives.

The court was required to determine whether the agreement was a genuine enterprise agreement, as defined by the Act, and whether it complied with the provisions of the Fair Work Act, including the requirements for direct representation, the process of negotiation, and the fairness of the terms and conditions proposed. The applicant argued that the agreement was a true enterprise agreement, negotiated in good faith with genuine employee representatives, and that it contained terms and conditions that were fair and reasonable. The opposing parties raised concerns about the process of negotiation and the representation of employees, questioning whether the agreement met the statutory criteria for approval.

The Fair Work Commission examined the evidence and submissions provided by both parties. It assessed the process of negotiation, the representation of employees, and the fairness of the proposed terms and conditions. The Commission found that the agreement was a genuine enterprise agreement, negotiated in good faith with directly represented employees, and that it contained terms and conditions that were fair and reasonable. The Commission considered the evidence provided, including the negotiation process and the views of employee representatives, and concluded that the applicant had met the statutory requirements for approval of the agreement. The Commission approved the Employ for Ability Enterprise Agreement 2024, enabling it to take effect as intended.

Employ For Ability Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established