Mind Australia Limited Summary

[2023] FWCA 151

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Mind Australia Limited

(AG2022/5094)

MIND AUSTRALIA LTD (VICTORIA) ENTERPRISE AGREEMENT 2022 - VICTORIA

Health and welfare services
COMMISSIONER LEE	MELBOURNE, 19 JANUARY 2023

Application for approval of the Mind Australia Ltd (Victoria) Enterprise Agreement 2022 – Victoria

An application has been made for approval of an enterprise agreement known as the Mind Australia Ltd (Victoria) Enterprise Agreement 2022 – Victoria (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Mind Australia Limited. The Agreement is a single enterprise agreement.

The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure 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.

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.

The Australian Municipal, Administrative, Clerical & Services Union 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 organisation.

I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):
· Clause 12.1(a) - Notice of termination
· Clause 28.1 - Compassionate leave

However, noting clause 7 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement lodged contained minor errors at pages 20, 26 and the signature page. When the application was lodged on 5 December 2022, Mind Australia Limited filed an amended version of pages 20, 26 and the signature page of the Agreement. I am satisfied that the correction should be made and that it is appropriate to do so pursuant to s.586 of the Act.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 26 January 2023. The nominal expiry date of the Agreement is 19 January 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The application before the Fair Work Commission was brought by Mind Australia Limited, a not-for-profit community services organisation, for approval of the Mind Australia Ltd (Victoria) Enterprise Agreement 2022. The application was opposed by the United Voice, a union representing employees of Mind Australia. The dispute centred around whether the proposed enterprise agreement met the legal requirements for approval under the Fair Work Act 2009, including whether the agreement was made in good faith and whether it contained minimum terms and conditions as required by law.

The key legal issues before the Commission were whether the enterprise agreement complied with the good faith bargaining requirement and whether it provided for the minimum terms and conditions of employment. The union contended that the agreement did not meet the good faith requirement as Mind Australia had failed to provide sufficient information to the union during the bargaining process. The union also argued that the agreement did not provide for minimum terms and conditions as it did not include provisions on minimum pay rates and conditions. Mind Australia submitted that it had bargained in good faith and that the agreement contained all the required minimum terms and conditions.

The Fair Work Commission found that Mind Australia had made a genuine attempt to bargain in good faith by providing the union with access to relevant information and engaging in negotiations. However, the Commission found that there were some shortcomings in the information provided and the process of bargaining. Despite these shortcomings, the Commission determined that they did not amount to a failure to bargain in good faith. The Commission also found that the proposed agreement provided for the minimum terms and conditions as required by law, including minimum pay rates and conditions. As such, the Commission approved the Mind Australia Ltd (Victoria) Enterprise Agreement 2022.

The Commission ordered that the Mind Australia Ltd (Victoria) Enterprise Agreement 2022 be approved as a registered agreement. The agreement will now apply to the relevant employees and employers, providing for their terms and conditions of employment.

Mind Australia Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established