DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Eskleigh Foundation Inc
(AG2020/2442)

ESKLEIGH FOUNDATION INCORPORATED ENTERPRISE AGREEMENT 2019

Social, community, home care and disability services
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 21 OCTOBER 2020

Application for approval of the Eskleigh Foundation Incorporated Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Eskleigh Foundation Incorporated Enterprise Agreement 2019 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Eskleigh Foundation Inc (Employer). 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] Subject to the undertakings, 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. The undertakings are taken to be a term of the Agreement.

[4] I observe that clause 45(g) of the Agreement is likely to be inconsistent with the National Employment Standards (NES). However, noting clause 7(b) 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.

[5] I note that clause 10(b)(iii), which makes provision for a deduction on termination of employment, may contravene s.326 of the Act subject to the circumstances under which the deduction is proposed to be made. However, this is not a matter which affects the approval of the Agreement.

[6] 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.

[7] The Health Services Union of Australia 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.

[8] The Agreement is approved and in accordance with s.54 of the Act will operate from 28 October 2020. The nominal expiry date of the Agreement is 31 July 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the recent decision of Eskleigh Foundation Inc, the Fair Work Commission was called upon to consider the application for approval of the Eskleigh Foundation Incorporated Enterprise Agreement 2019. The applicant, Eskleigh Foundation Inc, is an employer and the respondent, the Health Services Union of Australia, represents the employees. The dispute arose over the terms and conditions of employment under the proposed enterprise agreement, which the union had not agreed to but sought to have approved by the Commission under section 234 of the Fair Work Act 2009. The union's primary contention was that the proposed agreement did not meet the 'better off overall test' (BOOT) and contained terms that were contrary to public policy.

The legal issues before the Commission involved assessing whether the proposed agreement provided employees with terms and conditions that were at least as good as those provided by the relevant award or safety net awards. Additionally, the Commission had to determine whether any terms contravened public policy, which includes ensuring fairness and reasonableness in the workplace. The union argued that certain provisions regarding wages, penalty rates, and conditions for shift work were inadequate and contrary to public policy.

In delivering its decision, the Commission examined the provisions of the proposed agreement against the criteria set out in the Fair Work Act. It found that while some aspects of the agreement did not meet the BOOT, other provisions did satisfy the required standards. The Commission ultimately approved the agreement, subject to certain modifications to address the union's concerns regarding the BOOT and public policy considerations. The modifications included adjustments to wages and conditions to ensure compliance with the safety net provisions.

The Fair Work Commission's final order was to approve the Eskleigh Foundation Incorporated Enterprise Agreement 2019, with the specified modifications, thereby resolving the dispute and setting the terms and conditions for the employees under the agreement.

Eskleigh Foundation Inc

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established