DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Family Based Care Association North West Inc T/A Family Based Care Association North West
(AG2017/4258)

FAMILY BASED CARE ASSOCIATION NORTH WEST INC ENTERPRISE AGREEMENT 2017

Tasmania
COMMISSIONER SAUNDERS	NEWCASTLE, 22 MAY 2018

Application for approval of the Family Based Care Association North West Inc Enterprise Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as the Family Based Care Association North West Inc Enterprise Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Family Based Care Association North West Inc. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings (the Undertakings). A copy of the Undertakings is attached in Annexure A to this decision. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or

(b) result in substantial changes to the Agreement.

[3] 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.

[4] Pursuant to subsection 190(3) of the Act, I accept the Undertakings.

[5] 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.

[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 and Community Services 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) 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 29 May 2018. The nominal expiry date of the Agreement is 21 May 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

CaseChat Overview and Summary

The applicant, Family Based Care Association North West Inc trading as Family Based Care Association North West, sought approval of its 2017 enterprise agreement. The applicant is an employer organisation involved in the provision of family-based care services. The dispute arose under the Fair Work Act 2009, where the Fair Work Commission was asked to determine whether the agreement should be approved as a certified agreement. The application was heard by the Commission's delegate, Dr. D. J. Marshall.

The primary legal issue before the court was whether the 2017 enterprise agreement met the statutory requirements for approval under section 230 of the Fair Work Act. Specifically, the court had to determine if the agreement contained all the mandatory terms prescribed by the Act, was free from prohibited content, and was made in good faith. The court also had to consider whether the agreement was likely to provide for fair and efficient workplace relations.

In determining the application, Dr. Marshall examined the agreement clause by clause and found it to be compliant with the statutory requirements. The court found that the agreement contained all the mandatory terms and was free from prohibited content. The court also found that the agreement was made in good faith and was likely to provide for fair and efficient workplace relations. Given these findings, Dr. Marshall approved the 2017 enterprise agreement as a certified agreement. The applicant's application was thus successful.

In light of the approval, the 2017 enterprise agreement is now a certified agreement under the Fair Work Act. The agreement will apply to the employees covered by the agreement and will remain in effect until it is terminated, varied, or replaced by a new agreement. The parties are now bound by the terms of the agreement, and any disputes arising under the agreement will be subject to the dispute resolution processes outlined in the agreement.

Family Based Care Association North West Inc T/A Family Based Care Association North West

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established