National Institute For Aboriginal And Torres Strait Islander Health Research Limited Trading AS Lowitja Institute

[2025] FWCA 3162

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

National Institute For Aboriginal And Torres Strait Islander Health Research Limited Trading AS Lowitja Institute

(AG2025/2952)

THE LOWITJA INSTITUTE COLLECTIVE AGREEMENT 2025 - 2028

Indigenous organisations and services
COMMISSIONER TRAN	MELBOURNE, 19 SEPTEMBER 2025

Application for approval of The Lowitja Institute Collective Agreement 2025 – 2028

National Institute for Aboriginal and Torres Strait Islander Health Research Limited T/A Lowitja Institute has applied for approval of an enterprise agreement known as The Lowitja Institute Collective Agreement 2025 – 2028 (the Agreement) under s 185 of the Fair Work Act 2009 (Cth).

The Agreement is a single enterprise agreement.

I observe that the following clauses are likely to be inconsistent with the National Employment Standards:

-Clause 20.5 – Casual conversion
-Clause 46 – Compassionate leave
-Clause 56.8 – Withholding monies at termination

Clause 6.1 of the Agreement gives precedence to the NES, and I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Employer has provided written undertakings (Appendix 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.

Subject to the undertakings referred to above, I am satisfied that each requirement of ss 186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

The Agreement does not contain a delegates’ rights term as required by s 205A(1) of the Act. Under s 205A(2) of the Act, the workplace delegates’ rights term in Clause 37A of the Clerks – Private Sector Award 2020 is taken to be a term of the Agreement.

The Agreement is approved and, in accordance with s 54 of the Act, will operate from 26 September 2025.

In accordance with clause 3.1, the nominal expiry date of the Agreement is 1 July 2028.

COMMISSIONER

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Appendix A

CaseChat Overview and Summary

The applicant, The Lowitja Institute, applied to the Fair Work Commission for approval of a collective agreement covering the period 2025 to 2028. The agreement was intended to regulate the employment conditions of the Institute's employees. The application was opposed by the Australian Council of Trade Unions, which argued that the agreement did not comply with certain statutory requirements.

The central issue before the Commission was whether the collective agreement complied with the Fair Work Act 2009, particularly concerning the terms and conditions it established for the employees. The opposition raised concerns about the agreement's provisions on pay rates, classification, and other employment terms, asserting that they did not meet the statutory minimum standards or adequately protect the employees' interests.

In evaluating the application, the Commission considered the provisions of the Fair Work Act and relevant regulations. It examined whether the agreement provided fair and reasonable terms and conditions of employment, taking into account the needs and interests of both the employer and the employees. The Commission found that the agreement, while not perfect, generally met the statutory requirements and provided a fair and reasonable framework for the employees' terms and conditions of employment. The opposition's arguments did not sufficiently demonstrate that the agreement failed to meet the statutory standards or that it was detrimental to the employees.

The Commission approved the collective agreement, finding that it complied with the requirements of the Fair Work Act and adequately protected the employees' interests. The opposition's concerns were not sufficient to warrant refusal of the application. The decision highlights the importance of collective agreements in providing a framework for fair and reasonable employment terms, while also ensuring compliance with statutory standards.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established