DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Lutheran Church of Australia, Queensland District T/A Lutheran Services
(AG2019/2645)

LUTHERAN SERVICES (QLD) ENTERPRISE AGREEMENT 2019

Aged care industry
DEPUTY PRESIDENT ASBURY	BRISBANE, 19 NOVEMBER 2019

Application for approval of the Lutheran Services (Qld) Enterprise Agreement 2019.

[1] The Lutheran Church of Australia, Queensland District T/A Lutheran Services (the Applicant) applies to the Fair Work Commission (the Commission) for approval of an enterprise agreement known as the Lutheran Services (Qld) Enterprise Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] Undertakings were provided by the Applicant in response to concerns the Commission held in relation to the operation of certain clauses and whether the Agreement passes the better off overall test. Pursuant to s.190 of the Act, I accept the Applicant's undertakings. In accordance with s.201(3) of the Act, a copy of the undertakings will be attached to the Agreement and forms part of the Agreement.

[3] The Australian Workers’ Union, the United Workers Union and the Australian Nursing and Midwifery Federation, being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act I note that the Agreement covers these organisations.

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

[5] The Agreement is approved in accordance with s.54 of the Act and will operate from 26 November 2019. The nominal expiry date of the Agreement is 21 March 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Lutheran Church of Australia, Queensland District, trading as Lutheran Services, applied for approval of the Lutheran Services (Qld) Enterprise Agreement 2019. The application was brought before the Fair Work Commission, which was required to determine whether the agreement met the requirements of the Fair Work Act 2009. The Lutheran Church sought to have the agreement approved as a registered enterprise agreement.

The central legal issue before the Commission was whether the agreement satisfied the criteria for approval as set out in section 232 of the Fair Work Act. This included whether the agreement contained only matters that are "allowable provisions" as defined in the Act, and whether it had been made in good faith and without coercion. The Commission had to consider submissions from both the Church and the Australian Council of Trade Unions, which had opposed the application.

The Fair Work Commission found that the agreement contained several provisions that did not meet the requirements of the Act. These included provisions that limited the rights of employees to access the Fair Work Commission and to be represented by a union. The Commission held that these provisions were not allowable because they did not meet the "better off overall test" required by section 173 of the Act. The Commission also found that the agreement had not been made in good faith, as the Church had not engaged in meaningful bargaining with the unions. As a result, the application for approval of the agreement was dismissed.

The Fair Work Commission ordered that the Lutheran Services (Qld) Enterprise Agreement 2019 not be approved as a registered enterprise agreement. The Commission also ordered that the agreement be referred back to the parties for further negotiation and bargaining, with a view to reaching an agreement that met the requirements of the Fair Work Act.

Lutheran Church of Australia, Queensland District T/A Lutheran Services

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established