Family Planning Tasmania

[2022] FWCA 386

[2022] FWCA 386

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Family Planning Tasmania
(AG2021/9285)

FAMILY PLANNING TASMANIA ENTERPRISE AGREEMENT 2021

Health and welfare services
DEPUTY PRESIDENT MANSINI	MELBOURNE, 8 FEBRUARY 2022

Application for approval of the Family Planning Tasmania Enterprise Agreement 2021.

[1] Family Planning Tasmania has applied for approval of a single enterprise agreement known as the Family Planning Tasmania Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] Since the application was made, the Commission inquired about whether the pre-approval requirements were met and raised concerns about whether the Agreement contains the mandatory terms and passes the “better off overall” test. Further information was provided in relation to these matters.

[3] The cohort of employees identified on the Applicant’s statutory declaration as covered by the Agreement at the time of the vote included a substantial number of casual employees. Further information was provided and I am satisfied that the impact of the Applicant requesting a broader than strictly eligible cohort of employees to vote was immaterial and does not prevent approval by the Commission. 1

[4] The model flexibility term prescribed by the Fair Work Regulations 2009 (Cth) is taken to be a term of the Agreement, pursuant to s.202(4) of the Act.

[5] Written undertakings were given in accordance with s.190 of the Act and are attached at Annexure A (Undertakings). The bargaining representatives did not oppose the Undertakings. 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. Pursuant to s.201(3) of the Act, the Undertakings are taken to be terms of the Agreement.

[6] Noting clause 4.3 of the Agreement, I am satisfied that the more beneficial entitlements of the National Employment Standards in the Act (NES) will prevail where there is an inconsistency between the Agreement and the NES.

[7] On the basis of the material contained in the application, further information provided on request of the Commission and 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.

[8] The Australian Nursing and Midwifery Federation and the Australian Municipal, Administrative, Clerical and Services Union, being bargaining representatives for the Agreement, have respectively given notice under s.183 of the Act. In accordance with s.201(2) I note that the Agreement covers these organisations.

[9] The Agreement was approved on 8 February 2022 and, notwithstanding clause 4.1(a) and in accordance with s.54, will operate from 15 February 2022. The nominal expiry date of the Agreement is 30 June 2023.

[10] For the purposes of publication, the signature page of the Agreement has been redacted in part, for confidentiality and as the enterprise agreement when made did not contain the redacted details. 2

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE514870  PR738143>

 1   See National Tertiary Education Industry Union v Swinburne University of Technology [2015] FCAFC 98.

 2   The Australian Workers’ Union v Oji Foodservice Packaging Solutions (Aus) Pty Ltd [2018] FWCFB 7501.

Annexure A