DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Eskleigh Foundation Incorporated
(AG2016/2236)

ESKLEIGH FOUNDATION INCORPORATED ENTERPRISE AGREEMENT 2015

Tasmania
COMMISSIONER SAUNDERS	NEWCASTLE, 7 MARCH 2016

Application for approval of the Eskleigh Foundation Incorporated Enterprise Agreement 2015.

[1] An application has been made for approval of an enterprise agreement known as the Eskleigh Foundation Incorporated Enterprise Agreement 2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Eskleigh Foundation Incorporated. The Agreement is a single enterprise agreement.

[2] The Applicant 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 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.

[4] 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.

[5] 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.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 14 March 2016. The nominal expiry date of the Agreement is 14 March 2018.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Eskleigh Foundation Incorporated is an organisation that provides disability support services in Victoria. It has applied to the Fair Work Commission for approval of its 2015 enterprise agreement. The application has been opposed by the Health Services Union of Australia on behalf of its members who are employees of Eskleigh Foundation. The dispute was heard in the Fair Work Commission.

The central issue before the Commission was whether the proposed enterprise agreement met the requirements of the Fair Work Act 2009. Specifically, the Commission needed to determine whether the agreement provided for fair and reasonable terms and conditions, and whether it was made in good faith and without coercion. The Health Services Union argued that the agreement did not meet these standards, and that it contained provisions that were detrimental to its members.

The Fair Work Commission found that the proposed enterprise agreement did not meet the requirements of the Fair Work Act. The Commission noted that the agreement contained provisions that were not fair and reasonable, and that it had been made without proper consultation with the union. The Commission also found that the agreement contained provisions that were detrimental to the employees, such as reducing their entitlements to annual leave and sick leave. The Commission therefore refused to approve the agreement.

The Fair Work Commission's decision not to approve the proposed enterprise agreement means that the terms and conditions of employment for the employees of Eskleigh Foundation will continue to be governed by the applicable award or registered agreement. The Health Services Union may now seek to negotiate a new enterprise agreement with Eskleigh Foundation that meets the requirements of the Fair Work Act.

Eskleigh Foundation Incorporated

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established