Endeavour Foundation Limited T/A Endeavour Foundation

[2024] FWCA 4038

[2024] FWCA 4038

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Endeavour Foundation Limited T/A Endeavour Foundation

(AG2024/3953)

ENDEAVOUR FOUNDATION ENTERPRISE AGREEMENT 2024

Social, community, home care and disability services
DEPUTY PRESIDENT DOBSON	BRISBANE, 19 NOVEMBER 2024

Application for approval of the Endeavour Foundation Enterprise Agreement 2024

1. This decision deals with an application made for approval of an enterprise agreement known as the Endeavour Foundation Enterprise Agreement 2024 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Endeavour Foundation (the Applicant). The Agreement is a single enterprise agreement.

1. The Notice of Employee Representational Rights (NERR) distributed to employees appears to describe a narrower coverage for the Agreement (and a slightly different name) to that which was eventually made. However, on the basis of the submissions made by the Applicant, on which all parties have had an opportunity to make submissions, I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural departure from the prescribed form requirements of the NERR under s.174(1A) of the Act and that the employees covered by the Agreement were not likely to have been disadvantaged by this. Accordingly, I exercise the discretion conferred by s.188(5) of the Act.[1]

1. The Australian Municipal, Administrative, Clerical and Services Union (ASU) has raised a number of issues with the Agreement, which it asserts to be obvious errors, defects or irregularities. The Applicant has reviewed those and agreed to make amendments to all but one of those. I am satisfied that this is appropriate. Those changes are:

·  Clause 4.4 – Missing from the reference table – Contents Page updated to include clause 4.4 - Job Sharing;

·  Clause 5.5.4 (a)(ii) – incorrectly references Clause 6.9.3(a) – Reference updated to clause 6.11.3(a);

·   Clause 5.5.4(b)(iii) – incorrectly references Clause 6.9.3(b) which does not exist – Reference updated to clause 6.11.3(b);

·   Clause 5.5.5(e) – incorrectly references Clause 5.5.4 – Reference updated to clause 5.5.5;

·   Clause 9.1.6(a) – incorrectly references Clause 10.1.5 which does not exist – Reference updated to clause 9.1.5; and

·   Clause 9.2.5(b) – incorrect references Clause 5.5.14 which does not exist – Referenced updated to clause 5.5.7.

The Employer has provided an updated copy of the Agreement which corrected these errors as outlined. I am satisfied that these issues each constitute an obvious error, defect, or irregularity and I amend the Agreement accordingly pursuant to s.218A of the Act.

1. The Applicant has provided written undertakings. 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.

1. The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

1. Pursuant to s.190(3) of the Act, I accept the undertakings.

1. Subject to the undertakings referred to above, having regard to the Statement of Principles,[2] on the basis of the material contained in the application and accompanying declarations, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

1. The Agreement does not contain a model flexibility term compliant with the Act. 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

1. I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

·  Clause 3.7.9 and 3.9.10 – Abandonment terms in respect of entitlement to notice not precluded by an employee who has abandoned their employment.

However, noting clause 1.7.2 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.

1. The Australian Workers Union (AWU) and the ASU have both lodged a Form F18 statutory declaration giving notice under s.183 of the Act that they each want the Agreement to cover them. In accordance with s.201(2) of the Act, I note the Agreement covers the AWU and the ASU.

1. The AWU and the ASU both raised concerns regarding the Better Off Overall Test (BOOT). I have considered these submissions but have determined that given the more beneficial terms of the Agreement and the undertakings given, the Agreement passes the BOOT.

1. The Agreement is approved and will operate from 26 November 2024. The nominal expiry date of the Agreement is 25 November 2027.

DEPUTY PRESIDENT

[1] Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[2019] FWCFB 318 [117].

[2] Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023.

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