Family Planning NSW Trading AS Family Planning Australia Summary

[2025] FWCA 2422

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Family Planning NSW Trading AS Family Planning Australia

(AG2025/2056)

FAMILY PLANNING NSW ADMINISTRATIVE PROFESSIONAL AND MANAGERIAL ENTERPRISE AGREEMENT 2024

Health and welfare services
DEPUTY PRESIDENT WRIGHT	SYDNEY, 23 JULY 2025

Application for approval of the Family Planning NSW Administrative,Professional and Managerial Enterprise Agreement 2024

Introduction  

Family Planning NSW Trading AS Family Planning Australia (the Employer) has made an application for approval of an enterprise agreement known as the Family Planning NSW Administrative Professional and Managerial Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The Australian, Municipal, Administrative, Clerical and Services Union (ASU) was a bargaining representative for the Agreement.

The Employer submitted that the Agreement will apply to employees who are covered by the Health Professionals and Support Services Award 2020 (Health Professionals Award), however the ASU submitted many of its members who are employed by the Employer are covered by the Social, Community, Home Care and Disability Services Industry Award 2010 (SCHADS Award). The ASU submitted that employees are better off under the Agreement compared to both the Health Professionals Award and the SCHADS Award.

Shift Worker

The Commission raised a concern with the Employer regarding the definition of a shift worker. The Employer submitted that shiftwork has never been a feature of its business operations and that it does not intend to introduce shiftwork.

Better off Overall Test (BOOT) Issues  

The Commission raised the following issues with the Employer which are relevant to whether employees are better off overall under the Agreement compared to the relevant Award:

Clause 18(a) of the Agreement provides that the ordinary span of hours is 8.00am to 8.00pm Monday to Friday and 8.00am to 1.00pm on Saturday. This appears to be inconsistent with clause 13.2(a) of the Health Professionals Award which provides that the span of hours for a day worker is 6.00 am and 6.00 pm, Monday to Friday. The Employer submitted that it operates a private medical practice, so the span of ordinary hours specified in clause 18 of the Agreement is within the span provided for in clause 13.2(b) of the Health Professionals Award. The ASU noted that the span of hours under clause 25.2 of the SCHADS Award is 6:00am to 8:00pm.

The Health Professionals Award provides that casual employees will receive compounding loading when working shiftwork. The Employer submitted that it does not employ casual team members on shift worker arrangements.

Clause 23 of the Health Professionals Award provides for extensive allowances. The Employer submits that the majority of the allowances do not apply to its operations.

I accept the Employer’s and the ASU’s submissions regarding the BOOT issues.

Section 190 Undertakings 

The Employer provided written undertakings to address the above shift worker issue. A copy of the undertakings is attached as Attachment 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. The undertakings are taken to be a term of the Agreement.

Section 186, 187, 188 and 190  
 

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.

Section 183 Bargaining Representatives  

The ASU 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 ASU.

Approval 

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 30 July 2025. The nominal expiry date of the Agreement is 30 June 2028.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Family Planning NSW Trading as Family Planning Australia was before the Fair Work Commission, a body constituted under the Fair Work Act 2009, in a dispute over the approval of an enterprise agreement. The application was brought by Family Planning NSW, and the Fair Work Commission was required to decide whether the agreement met the requirements for approval under the Fair Work Act. The application involved the Family Planning NSW Administrative, Professional and Managerial Enterprise Agreement 2024. The agreement sought approval for its terms and conditions, which would apply to the employees covered by the agreement. The Commission's task was to consider whether the agreement complied with the legal requirements, including provisions related to the negotiation process, the content of the agreement, and the interests of the employees and employers.

The key legal issues before the Commission were whether the agreement was genuinely negotiated, if it included the minimum terms and conditions mandated by the Fair Work Act, and whether it complied with the procedural requirements for approval. The Commission had to assess if the agreement was made in good faith and whether it covered the essential terms and conditions of employment. Additionally, the Commission had to determine if the agreement adhered to the procedural requirements for approval, including whether it was properly presented and if there were any defects in the application process. The Commission also needed to ensure that the agreement did not disadvantage employees and that it provided a fair and reasonable outcome for all parties involved.

After thorough consideration of the application and the evidence presented, the Fair Work Commission determined that the Family Planning NSW Administrative, Professional and Managerial Enterprise Agreement 2024 met the necessary criteria for approval. The Commission found that the agreement was genuinely negotiated and included the minimum terms and conditions required by law. The Commission concluded that the agreement was fair and reasonable, and it did not disadvantage employees. The procedural requirements for approval were also satisfied, and there were no significant defects in the application process. Consequently, the Commission approved the agreement, allowing it to come into effect and apply to the relevant employees.

In its decision, the Fair Work Commission approved the Family Planning NSW Administrative, Professional and Managerial Enterprise Agreement 2024. The Commission found that the agreement was genuinely negotiated, included the minimum terms and conditions required by the Fair Work Act, and adhered to the procedural requirements for approval. The Commission determined that the agreement was fair and reasonable and did not disadvantage employees. The agreement was approved, and it came into effect, applying to the relevant employees covered by the agreement.

Family Planning NSW Trading AS Family Planning Australia

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established