Mission Australia
[2024] FWCA 3913
•8 NOVEMBER 2024
| [2024] FWCA 3913 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Mission Australia
(AG2024/3622)
MISSION AUSTRALIA SERVICE DELIVERY ENTERPRISE AGREEMENT 2024
| Social, community, home care and disability services | |
| DEPUTY PRESIDENT ROBERTS | SYDNEY, 8 NOVEMBER 2024 |
Application for approval of the Mission Australia Service Delivery Enterprise Agreement 2024
An application has been made for approval of an enterprise agreement known as the Mission Australia Service Delivery Enterprise Agreement 2024 (‘Agreement’ or ‘proposed agreement’). The Application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Mission Australia (Applicant). The Agreement is a single enterprise agreement.
After the filing of the application, the Applicant provided further written submissions and undertakings to address initial concerns that I had raised about the application. One of those concerns related to the distribution of the Notice of Employee Representational Rights (NERR). The Applicant’s submission clarified that a NERR was initially issued on 7 February 2024 which was the same date as the notification time for the Agreement. The NERR that was issued on that date did not include a reference to the Education Services (Teachers) Award 2020 which was one of the modern awards with coverage that coincided with the coverage of the Agreement. The Applicant also accepted that the formatting of the NERR made it difficult to comprehend. As a result, the Applicant issued a second NERR on 27 February 2024 to employees and bargaining representatives to rectify these issues. A copy of the second NERR also posted on the Applicant’s intranet.
The Australian Services Union (ASU) submitted that employees were disadvantaged by the deficiencies with the original NERR as it did not provide employees with sufficient clarity as to who would be covered by the proposed agreement, particularly given that there were differences between the coverage of the existing agreement and the proposed agreement. At a conference convened to deal with the Application, the ASU accepted that the coverage of the proposed agreement referred to in the second NERR aligned with the coverage of the Agreement that was ultimately made. No issue was taken as to the second NERR being compliant with s.174. None of the other bargaining representatives contended that the NERR process undermined the genuineness of the agreement that had been made.
I am of the view that notwithstanding the failure to issue the second NERR with 14 days of the notification time as required by s173(3), the Agreement was nonetheless genuinely agreed to by the employees covered by it. I regard the failure to meet the 14-day period in this case to be a minor procedural error within the meaning of s.188(5) and am satisfied that employees were not likely to have been disadvantaged by the error. I propose to disregard the error under s.188(5). I have also taken into account, as I am required to do,[1] the Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023.
The ASU also made brief written submissions to the effect that the employer had not taken all reasonable steps to explain the terms of the Agreement and the effect of those terms as required by s.180(5). They were provided with an opportunity to make further submissions or provide evidence in support of the submission after the initial conference but did not do so. I have considered the material provided in support of the application relating to the steps taken to explain the document. These include detailed written explanations, recorded webinars that were posted to the Applicant’s intranet and ‘viva’ posts with links to explanatory material. I am satisfied that the requirements of s180(5) have been met.
The written undertakings provided by the Applicant appear at Annexure A. In accordance with s.190(4) of the Act the views of the bargaining representatives for the agreement were sought in relation to 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.
Taking into account the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as is relevant to this application for approval has been met. The undertakings are taken to be a term of the Agreement.
Noting the undertakings provided, I am satisfied that the more beneficial entitlements of the National Employment Standards (NES) in the Act will prevail where there is an inconsistency between the Agreement and the NES.
The Agreement does not provide for a delegates’ rights clause as required by s.205A(1) of the Act. In accordance with s.201(1A), I note that the workplace delegates’ rights clauses in the Aged Care Award 2010, Children’s Services Award 2010, Educational Services (Teachers) Award 2020, Educational Services (Post-Secondary Education) Award 2020, Health Professionals and Support Services Award 2020, Labour Market Assistance Industry Award 2020, Nurses Award 2020 and the Social, Community, Home Care and Disability Services Industry Award 2010 are to be taken to be a term of the Agreement.
The ASU, the United Workers Union (UWU) the Independent Education Union of Australia, NSW/ACT Branch (IEU), the Health Services Union NSW/ACT/QLD (HSU) and the Australian Nursing and Midwifery Federation – NSW Branch (ANMF) each lodged a Form F18 statutory declarations giving 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 the Agreement covers the ASU, UWU, IEU, HSU and ANMF.
The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 30 July 2027.
DEPUTY PRESIDENT
Annexure A
[1] Section 188(1).
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