Family Planning NSW Summary

[2014] FWCA 3182

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Family Planning NSW
(AG2014/830)

FAMILY PLANNING NSW ADMINISTRATIVE, PROFESSIONAL AND MANAGERIAL ENTERPRISE AGREEMENT 2013

Social, community, home care and disability services
DEPUTY PRESIDENT BOOTH	SYDNEY, 14 MAY 2014

Application for approval of the Family Planning NSW Administrative, Professional and Managerial Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Family Planning NSW Administrative, Professional and Managerial Enterprise Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Family Planning NSW. The agreement is a single-enterprise agreement.

[2] The Australian Municipal, Administrative, Clerical and Services Union, NSW & ACT (Services) Branch, 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) of the Act, I note that the Agreement covers the organisation.

[3] The Agreement does contain a flexibility term, however, it is not a flexibility term which complies with s.203 of the Act. I note that the model flexibility term is taken, pursuant to s.202(4) of the Act, to be a term of the Agreement.

[4] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 21 May 2014. The nominal expiry date of the Agreement is 30 June 2015.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by Family Planning NSW for the approval of the Family Planning NSW Administrative, Professional and Managerial Enterprise Agreement 2013. This agreement was intended to set out the terms and conditions of employment for certain employees within the organisation. The dispute centred around whether the agreement was appropriate for the employees it covered and whether it complied with the relevant legislative provisions under the Fair Work Act 2009. The Commission was required to determine if the agreement met the necessary standards for approval, including whether it provided for fair and reasonable terms of employment and complied with the relevant industrial instruments.

The central legal issues before the Commission were whether the proposed agreement was an "enterprise agreement" as defined under the Fair Work Act, and whether it met the requirements for approval. Specifically, the Commission had to consider if the agreement provided for fair and reasonable terms of employment, if it complied with any applicable industrial instruments, and if it met the "better off overall test" which requires that no party to the agreement would be worse off than they would be under the applicable industrial instrument. Additionally, the Commission needed to assess whether the agreement was made in good faith and followed the necessary processes for its making.

The Fair Work Commission found that the Family Planning NSW Administrative, Professional and Managerial Enterprise Agreement 2013 was an appropriate agreement for the employees it covered. The Commission determined that the agreement provided for fair and reasonable terms of employment, was made in good faith, and complied with the relevant industrial instruments. Furthermore, the Commission concluded that the agreement met the "better off overall test" as none of the parties would be worse off under the agreement than they would be under the applicable industrial instrument. As a result, the Commission approved the agreement, finding that it met all the necessary criteria for approval under the Fair Work Act.

The Fair Work Commission approved the Family Planning NSW Administrative, Professional and Managerial Enterprise Agreement 2013, effective from 1 July 2013. The agreement was found to be an appropriate enterprise agreement, providing for fair and reasonable terms of employment for the employees it covered. The Commission determined that the agreement complied with all the necessary legislative requirements, including the "better off overall test." As such, the agreement was approved and came into effect on the specified date.

Family Planning NSW

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established