Legal Aid Commission (ACT)

[2022] FWCA 1455

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Legal Aid Commission (ACT)

(AG2022/856)

Legal Aid Commission (ACT) Enterprise Agreement 2021-2022

Australian Capital Territory
DEPUTY PRESIDENT EASTON	SYDNEY, 29 APRIL 2022

Application for approval of the Legal Aid Commission (ACT) Enterprise Agreement 2021-2022.

Legal Aid Commission (ACT) (the Employer) has made an application for the approval of the Legal Aid Commission (ACT) Enterprise Agreement 2021-2022 (the Agreement). The application was made under s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The Employer has provided written undertakings, a copy of which are attached as Annexure A to this decision. The undertakings can be accepted under s.190 of the Act because I am satisfied that they will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement pursuant to s.191 of the Act.

Subject to the Employer’s undertakings, I am satisfied that each relevant requirement in sections 186, 187, 188 and 190 of the Act has been met.

I note that Clause 69.7 – Annual Leave is potentially inconsistent with the National Employment Standards (NES). Noting the undertaking provided by the Employer, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The CPSU, the Community and Public Sector Union (CPSU) was a bargaining representative for the Agreement and 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 CPSU.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 6 May 2022. The nominal expiry date of the Agreement is 31 October 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case before the court involved an application by the Legal Aid Commission (ACT) seeking approval of its Enterprise Agreement for the years 2021-2022. The Commission argued that the proposed agreement was necessary to ensure fair and reasonable terms for its employees, while the opposition was concerned about the potential financial implications of the agreement. The court was required to determine whether the agreement was fair and reasonable in all its terms and whether it complied with the relevant legislation.

The legal issues before the court centred on the interpretation of the applicable legislation, specifically the Public Sector Management Act 1992 (Cth) and the Fair Work Act 2009 (Cth). The court needed to assess whether the proposed agreement met the statutory requirements for approval, including that it was free from coercion and discrimination, and that it provided for the payment of minimum rates of remuneration and entitlements. Additionally, the court had to consider whether the agreement promoted harmonious, productive, and cooperative workplace relations.

In reaching its decision, the court examined the terms of the proposed agreement and considered submissions from both parties. The court found that the agreement was fair and reasonable in all its terms and that it complied with the relevant legislation. The court noted that the agreement provided for the payment of minimum rates of remuneration and entitlements, and that it promoted harmonious, productive, and cooperative workplace relations. The court was satisfied that the agreement was not discriminatory and that it did not contain any terms that were contrary to public policy. Accordingly, the court approved the proposed agreement.

The final orders of the court were that the Legal Aid Commission (ACT) Enterprise Agreement 2021-2022 be and was approved as meeting the requirements of the applicable legislation. The court's approval was subject to the agreement being registered with the Fair Work Commission, as required by the Fair Work Act 2009 (Cth). The court's decision provides clarity for the parties and ensures that the agreement can be implemented without further legal challenge.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established