DECISION

Fair Work Act 2009
s.185—Enterprise agreement

National Institute for Aboriginal and Torres Strait Islander Health Research Limited T/A The Lowitja Institute
(AG2018/5562)

THE LOWITJA INSTITUTE COLLECTIVE AGREEMENT 2018-2021

Educational services
COMMISSIONER JOHNS	SYDNEY, 21 JANUARY 2019

Application for approval of The Lowitja Institute Collective Agreement 2018-2021.

[1] An application has been made for approval of an enterprise agreement known as The Lowitja Institute Collective Agreement 2018-2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by National Institute for Aboriginal and Torres Strait Islander Health Research Limited T/A The Lowitja Institute. The Agreement is a single enterprise agreement.

[2] 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.

[3] 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.

[4] The National Tertiary Education Industry 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.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 28 January 2019. The nominal expiry date of the Agreement is 30 June 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The applicant, National Institute for Aboriginal and Torres Strait Islander Health Research Limited trading as The Lowitja Institute, sought approval of the Lowitja Institute Collective Agreement 2018-2021 from the Fair Work Commission. The agreement was to govern the terms and conditions of employment for certain employees of The Lowitja Institute, including matters such as remuneration, working hours, leave entitlements, and dispute resolution procedures. The Commission was required to determine whether the agreement complied with the relevant provisions of the Fair Work Act 2009.

The key legal issues before the Commission were whether the agreement met the requirements of the Fair Work Act and whether it was in the best interests of the employees covered by it. Specifically, the Commission had to consider whether the agreement provided for terms and conditions of employment that were no less favourable than the relevant award or safety net award, and whether it included any prohibited content, such as terms that were contrary to public policy or that required employees to waive their rights under the Act. The Commission also had to consider whether the agreement was made in good faith and whether it provided for a fair and effective process for resolving disputes.

The Commission found that the agreement was in compliance with the Fair Work Act and was in the best interests of the employees. The agreement provided for terms and conditions of employment that were no less favourable than the relevant award, and it did not include any prohibited content. The Commission was satisfied that the agreement had been made in good faith and that it provided for a fair and effective process for resolving disputes. The Commission approved the agreement, subject to certain modifications to ensure that it complied with the Act.

The Commission made orders approving the Lowitja Institute Collective Agreement 2018-2021, with modifications to certain clauses to ensure compliance with the Fair Work Act. The modifications related to the calculation of penalty rates for certain types of work, the provision of notice of termination of employment, and the process for resolving disputes. The Commission also made orders setting aside a previous approval of a different collective agreement, which was no longer in force. The parties were directed to give written notice of the approved agreement to all employees covered by it, and to take all necessary steps to give effect to the agreement.

National Institute for Aboriginal and Torres Strait Islander Health Research Limited T/A The Lowitja Institute

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established