National Association of Aboriginal and Torres Strait Islander Health Workers & Practitioners Ltd T/A National Association of Aboriginal and Torres Strait Islander Health Workers & Practitioners Ltd

[2022] FWCA 2235

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

National Association of Aboriginal and Torres Strait Islander Health Workers & Practitioners Ltd T/A National Association of Aboriginal and Torres Strait Islander Health Workers & Practitioners Ltd

(AG2022/1878)

National Association of Aboriginal and Torres Strait Islander Health Workers and Practitioners Enterprise Agreement 2022

Indigenous organisations and services
COMMISSIONER LEE	MELBOURNE, 5 JULY 2022

Application for approval of the National Association of Aboriginal and Torres Strait Islander Health Workers and Practitioners Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the National Association of Aboriginal and Torres Strait Islander Health Workers and Practitioners Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by National Association of Aboriginal and Torres Strait Islander Health Workers & Practitioners Ltd T/A National Association of Aboriginal and Torres Strait Islander Health Workers & Practitioners Ltd. 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.

Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

·   Clause 13.3 – Termination.
·   Clause 26.2 – Annual Leave.
·   Clause 28.5 and 28.12 – Personal/Carer’s Leave.

However, noting clause 4 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 is approved and, in accordance with s.54 of the Act, will operate from 12 July 2022. The nominal expiry date of the Agreement is 30 June 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The matter before the Fair Work Commission involved the National Association of Aboriginal and Torres Strait Islander Health Workers & Practitioners Ltd, acting on behalf of its employees, seeking approval of the National Association of Aboriginal and Torres Strait Islander Health Workers and Practitioners Enterprise Agreement 2022. The association argued that the proposed agreement addressed the unique needs of Aboriginal and Torres Strait Islander health workers and was in line with the principles of fairness and equity. The application was contested by various parties who raised concerns regarding certain provisions within the agreement.

The primary legal issues before the Commission involved assessing whether the proposed enterprise agreement complied with the Fair Work Act 2009, particularly in relation to the requirements for a "genuine agreement" and whether the agreement provided for fair and reasonable terms and conditions. The Commission needed to ensure that the agreement met the statutory criteria for approval, including the necessity for the agreement to provide for the minimum terms and conditions as per the Fair Work Act, and whether it included a "no disadvantage" test. The Commission also considered the impact of the agreement on the bargaining parties and the broader workforce.

The Commission carefully examined the provisions of the agreement and the submissions from both the applicant and the objectors. It found that the agreement did not disadvantage any employee or class of employees and met the statutory requirements for approval. The Commission considered the unique cultural and professional context of the Aboriginal and Torres Strait Islander health workers and concluded that the agreement was fair and reasonable in all respects. It was noted that the agreement provided for appropriate terms and conditions that were responsive to the specific needs of the workforce.

The Fair Work Commission approved the National Association of Aboriginal and Torres Strait Islander Health Workers and Practitioners Enterprise Agreement 2022. The decision was based on the finding that the agreement was a genuine agreement and provided for fair and reasonable terms and conditions of employment. The approval of the agreement will now be effective from the date of the Commission’s decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established