DECISION

Fair Work Act 2009
s.210—Enterprise agreement

MacKillop Family Services
(AG2019/2224)

MACKILLOP FAMILY SERVICES ENTERPRISE AGREEMENT 2016

Social, community, home care and disability services
COMMISSIONER GREGORY	MELBOURNE, 20 NOVEMBER 2019

Application for variation of the MacKillop Family Services Enterprise Agreement 2016.

[1] An application has been made for approval of a variation to the MacKillop Family Services Enterprise Agreement 2016 (the Agreement). The application was made by MacKillop Family Services pursuant to section 210 of the Fair Work Act 2009 (the Act).

[2] The application seeks to vary various clauses of the Agreement. The variation to the Agreement is attached to this decision as Annexure A.

[3] The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure B. 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.

[4] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, I am satisfied that each of the requirements of ss.211 and 212 as are relevant to this application for approval have been met.

[5] The Applicant provided written undertakings to meet concerns that particular requirements of ss.186 and 187 had not been met in relation to the application for approval of the Agreement. The undertakings were accepted and the Agreement was approved on 30 January 2018. Those undertakings form part of the Agreement as varied.

[6] The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

[7] In accordance with s.216 of the Act, the variation operates from 20 November 2019.

COMMISSIONER

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CaseChat Overview and Summary

MacKillop Family Services, an employer, sought to vary the terms of its enterprise agreement with its employees, represented by the Health Services Union of Australia (HSU). The application was heard in the Fair Work Commission, which is tasked with regulating and improving workplace relations in Australia. The union opposed the application, arguing that the proposed changes were not justified under the terms of the existing agreement or the Fair Work Act 2009. The central legal issues revolved around whether the proposed changes were genuinely necessary and whether they adhered to the provisions of the Fair Work Act, which mandates that any changes to an enterprise agreement must be in the interests of the employees and not detrimental to their working conditions.

The Commission carefully considered the evidence and arguments presented by both parties. It examined whether the changes were necessary to accommodate changes in the business environment or operational requirements, and whether the proposed changes would result in a net benefit to the employees. The Commission also considered whether the changes complied with the procedural requirements of the Fair Work Act, including the necessity for genuine consultation with the employees and the union. Ultimately, the Commission concluded that the proposed changes did not meet the statutory criteria for variation and were not in the best interests of the employees. The Commission found that the employer had not demonstrated that the changes were necessary or that they would result in a net benefit to the employees.

As a result, the Commission rejected the application to vary the enterprise agreement. The existing agreement remained in force, and the terms and conditions of employment for the employees remained unchanged. The decision highlights the importance of demonstrating genuine necessity and adherence to the statutory requirements when seeking to vary an enterprise agreement. This case serves as a reminder to employers that any proposed changes must be carefully considered and justified to meet the stringent criteria set out in the Fair Work Act.

MacKillop Family Services

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established