Neighbourhood Houses Victoria Inc

[2025] FWCA 1713

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Neighbourhood Houses Victoria Inc

(AG2024/4475)

NEIGHBOURHOOD HOUSES AND ADULT COMMUNITY EDUCATION CENTRES COLLECTIVE AGREEMENT 2024

Social, community, home care and disability services
COMMISSIONER REDFORD	MELBOURNE, 22 MAY 2025

Application for approval of the Neighbourhood Houses and Adult Community Education Centres Collective Agreement 2024.

An application has been made for approval of an enterprise agreement known as the Neighbourhood Houses and Adult Community Education Centres Collective Agreement 2024. (the Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (the Act). It has been made by Neighbourhood Houses Victoria Inc (NHV) who was a bargaining representative for the Agreement
The application concerns about 178 employers known as “Neighbourhood Houses” operating in Victoria. A neighbourhood house is a not-for-profit organisation operating as a community hub from which various services and programs derive. Most of the employers employ small numbers of employees. Most are governed by a volunteer committee or board of governance. They are provided with support, advocacy and other services through the relevant peak body – NHV.

Type of Agreement

An amended application filed by NHV, at item 1.1, describes the Agreement as a “multi-enterprise agreement”. Section 12 of the Act defines a “multi-enterprise agreement” as an enterprise agreement made as referred to in s 172(3) of the Act. Section 172(3) relevantly describes a multi enterprise agreement as one made with two or more employers that are not all related employers, with the employees who are employed at the time the agreement is made and who will be covered by the agreement.
The Agreement is plainly an agreement made involving two or more employers that are not all related employers. No supported bargaining or single interest employer authorisation was made in respect of the Agreement. It is therefore a “cooperative workplace agreement” within the meaning of s 12 of the Act.

The application and the manner in which I have dealt with the application.

The application was filed on 13 November 2024 by NHV. It appeared to have been drawn by NHV’s representative, Mr Brett Pomroy, from Salt Legal Pty Ltd. Mr Pomroy is named in the signature block on the application (albeit it is not signed).
The application and its accompanying materials were, put bluntly, a hot mess. It stated the Agreement is proposed to cover 2 employers but elsewhere appeared to indicate 190 employers will “sign on” to the agreement. Three Form F17C Declarations accompanied the application - one in respect of NHV itself and two others made by participating employers. In those Declarations, the Agreement is described as a “supported bargaining agreement” when plainly it is not. Even the name of the Mr Pomroy’s client was misspelt in one part of the application. It was not made in accordance with the requirements of s 185(2) of the Act, or the Fair Work Commission Rules 2024.
I conducted a mention in relation to this matter on 16 December 2024. By then, for reasons never explained, Salt Legal Pty Ltd had disappeared from the picture. At the mention I heard submissions made in support of an application by NHV that permission be granted for it to file an amended application. Bargaining representatives or the Agreement – the ASU, the NTEU and “Amplify Alliance” (formerly Jobs Australia) supported the proposition.
I also made known to the parties my concern that I could not reach the state of satisfaction necessary in relation to the requirements of the Act for the approval of the Agreement without being provided with evidence from each participating employer about the process it adopted to make the Agreement. I was asked by NHV to allow it time to gather Form F17C declarations from each of its members.
In dealing with this application, I consider several matters have warranted the Commission providing the applicant, it’s employer members and the bargaining representatives with significant leeway in relation to some of the procedural requirements associated with the making of an enterprise agreement. The Commission is required to perform its functions in a manner that is quick, informal and avoids unnecessary technicalities[1], and which takes into account the objects of the Act and any part of the Act[2]. One of the objects Part 2-4 of the Act is to provide a simple, flexible and fair framework that enables collective bargaining in good faith, particularly (but not exclusively) at the enterprise level, for enterprise agreements that deliver productivity benefits[3]. I have therefore considered it appropriate, in dealing with the application to take into account the following:

a.The participating employers are largely small, community, not-for-profit organisations, mostly run by volunteers, with no apparent industrial legal expertise.
b.The applicant is self-represented, with apparently limited industrial legal expertise.
c.The application is for the approval of an agreement which contains benefits for a large number of employees working in the community programs delivered by the participating employers.
d.Each of the bargaining representatives appeared to support the lenient approach the Commission has taken to dealing with the application.

It was in this light that, pursuant to s 586 of the Act, I allowed the amendment of the application, accepted Form F17C declarations to be filed more than 14 days after the filing of the application and allowed NHV a period of about six weeks to work with its members to prepare and file those declarations. The amended application was filed on 7 February 2025 and Form F17C Declarations filed on 21 March 2025.

Further information required in relation to the application.

Upon consideration of the Form F17C Declarations filed by the participating employers on 21 March 2025, it was evident that a number of employers had made errors or omissions in those documents. It was necessary to obtain further information about some of those matters and to seek submissions as to whether the Commission should exercise its discretion to overlook some minor irregularities and defects in form and procedure. I therefore issued three Statements[4] in relation to the application over the course of March and April 2025, in relation to which further information and submissions were provided by NHV and the other bargaining representatives. About six tranches of additional information were provided.

Procedural issues arising, and requiring determination.

The circumstances in which the Commission must approve a multi-enterprise agreement that is a cooperative workplace agreement are broadly similar to when dealing with an application for approval of a single-enterprise agreement.
Various amendments were made to the Act by the Fair Work Legislation (Secure Jobs Better Pay) Amendment Act 2022 (the Amending Act) relating to the making and approval of agreements. The commencement date of many of those amendments was 6 June 2023. The Act’s transitional provisions provide the amendments do not operate in relation to any proposed enterprise agreement for which the notification time occurs before the commencement of those amendments[5]. Many of the participating employers indicated a notification time prior to 6 June 2023 (pre-reform employers). A different approach was therefore required to be taken to the application in relation to these pre-reform employers in a number of respects, as opposed to other employers whose notification time was after 6 June 2023 (post reform employers).
One effect of the amendments made by the Amending Act is that a Notice of Employee Representational Rights (NERR) is now only required in respect of a proposed single-enterprise agreement, not a multi-enterprise agreement[6]. Prior to this amendment, it was required that a NERR be distributed to employees in respect to an enterprise agreement that was not a greenfields agreement[7]. This included proposed multi-enterprise agreements. Prior to the amendments, s 173(3) of the Act required that the NERR be provided to employees no later than 14 days after the notification time for the agreement. The position continues in respect to an agreement for which the notification time is prior to 6 June 2023. An employer’s failure to provide the NERR no later than 14 days after the notification could have rendered the notice invalid, and any subsequent agreement incapable of approval[8].
As was the case prior to the Amending Act, s 181(2) provides that employees should not be asked to vote on a proposed agreement until at least 21 days after the day on which the last NERR was issued to relevant employees. By necessary implication, where, in respect of post-reform employers a NERR is not required, this provision does not apply.
Section 188(1) of the Act now requires the Commission to take into account the Statement of Principles on Genuine Agreement (Statement of Principles) in determining whether it is satisfied that an enterprise agreement has been genuinely agreed to by the employees covered by the agreement[9]. Previously an enterprise agreement had been genuinely agreed to by employees if, among other things, the Commission was satisfied that certain pre-approval steps were taken. These steps were required to be taken during or by the start of the “access period” for a proposed enterprise agreement. The “access period” was the 7 day period ending immediately before the start of the voting process[10]. The pre approval steps included the requirement that employees be provided with the following information:

a.The time and place at which the vote will occur; and

The voting method that will be used[11].
The Amending Act removed the legislative requirement that employees be provided with at least 7 days notice of the time, place and method of voting for a proposed enterprise agreement. However, items [15] – [16] of the Statement of Principles provides:
Providing employees with a reasonable opportunity to vote on a proposed agreement in a free and informed manner, including by informing the employees of the time, place and method for the vote
15. Employees should be given a reasonable opportunity to vote on a proposed enterprise agreement in a free and informed manner. This should include:
(a) a voting process that ensures the vote of each employee is not disclosed to or ascertainable by the employer, and
(b) a method and period of voting that provides all employees entitled to vote with a fair and reasonable opportunity to cast a vote.
16. Employees should be informed of the time, place and method for the vote:
(a) at least 7 full calendar days before the day on which voting starts (for example, if the voting is to start on 9 May, employees should be informed on or before 1 May), or
(b) by such other reasonable time before the day on which voting starts as is agreed with one or more employee organisation(s) acting as bargaining representative(s) for a significant proportion of the employees to be covered by the agreement.
Item 1 of the Statement of Principles also provides that an employer should ensure that employees of the employer who will be covered by a proposed enterprise agreement are informed of, among other things, their right to be represented in bargaining for the agreement, including by an employee organisation or by another bargaining representative of their choice, at such a time and in such a manner that the employees have a reasonable opportunity to be represented in bargaining for the agreement. Item 2 provides that if a NERR is required to be distributed, this will satisfy the requirements of item 1. By implication, if a NERR is not required, but one is distributed to employees nonetheless, this will satisfy the requirement to provide employees with information about their right to be represented in the bargaining process.
The Statement of Principles does not operate as a mandatory set of rules that must be complied with by an employer where the failure to do so would mean the Commission cannot be satisfied the agreement has been genuinely agreed. Compliance with the Statement of Principles will weigh more heavily in favour of a conclusion that the agreement has genuinely been agreed, and non-compliance will weigh against such a conclusion[12].
As a result of amendments to the Act made in 2018[13], s 188(2) of the Act provided that minor procedural or technical errors relating to some requirements concerning the making of agreements could be disregarded if the employees covered by the agreement were not likely to have been disadvantaged by the errors[14]. Section 188(5) of the Act retains this discretion in respect of some matters still required by the legislative scheme. In Huntsman Chemical Company Australia Pty Limited (t/as RMAX Rigid Cellular Plastics)[15] a Full Bench found that what constitutes a ‘minor’ error “calls for an evaluative judgement having regard to the underlying purpose of the relevant procedural or technical requirement which has not been complied with and the relevant circumstances”[16].
In respect to post-reform employers, s 180A of the Act now requires as follows
180A Agreement of bargaining representatives that are employee organisations—proposed multi‑enterprise agreements
(1) This section applies to a proposed enterprise agreement that is a multi‑enterprise agreement.
(2) An employer must not request under subsection 181(1) that employees approve the enterprise agreement by voting for it unless:
(a) each bargaining representative for the enterprise agreement that is an employee organisation has provided the employer with written agreement to the making of the request; or
(b) a voting request order permits the employer to make the request.
Taking into account the materials provided in support of the application for the approval of the Agreement, some of the particular procedural matters which arose in my consideration of this application were:
1. Whether in respect of pre-reform employers, employees had been provided with a copy of a NERR within 14 days of the notification time for the Agreement and if they had not, whether the failure to do so could be disregarded as a minor procedural or technical error.
2. Whether in respect of post-reform employers, employees of the employer who will be covered by a the Agreement were informed of their right to be represented in bargaining, including by an employee organisation or by another bargaining representative of their choice, at such a time and in such a manner that the employees had a reasonable opportunity to be represented in bargaining.
3. Whether in respect of pre-reform employers, employees had been provided information including the time and place at which the vote would occur, and the voting method that would be used, during or by the start of the access period (at least 7 days prior to having been asked to vote) or, if this did not occur, whether any such error should be disregarded.
4. Whether in respect of post-reform employers, employees were informed of the time, place and method for the vote at least 7 full calendar days before the day on which voting was to start or by such other reasonable time before the day on which voting was to start as agreed with one or more employee organisations acting as bargaining representative for a significant proportion of the employees to be covered by the Agreement.
5. Whether, in respect of post reform employers, each bargaining representative for the enterprise agreement that is an employee organisation provided the employer with written agreement to the making of the request that employees approve the agreement by voting for it, or a voting request order had been made permitting the employer to make the request, or, if this did not occur, whether any such error should be disregarded pursuant to s 188(5) of the Act.
6. Whether the application for approval of the Agreement was made within 14 days after the agreement was made (taking into account s 182(2) of the Act, which deals with when a multi-enterprise agreement is “made”).

Procedural requirements - consideration

Provision of the NERR, or information about the right to be represented in bargaining.

In a Statement I issued on 24 April 2025[17], I indicated it was my provisional view that in respect of each of the pre-reform employers bar one, employees had been provided with a copy of a NERR within 14 days of the notification time for the proposed agreement, and in respect of the post reform employers, their employees had been informed of their right to be represented in bargaining for the agreement, including by an employee organisation or by another bargaining representative of their choice, at such a time and in such a manner that the employees had a reasonable opportunity to be represented in bargaining for the agreement. The bargaining representatives were invited to make submissions about this provisional view, and each supported the view. I confirm that provisional view.
In information provided to the Commission by NHV on 31 March 2025 and again on 7 April 2025, NHV advised that Lilydale Community House Inc cannot substantiate that it distributed its employees with a NERR. In an F17C Declaration filed by Lilydale Community House Inc, the notification time in respect of the agreement was stated as 23 July 2024. In Part 3.2 of the Declaration, in response to the question as to the steps taken to provide employees with a NERR, no information was provided – the declaration was blank in this area. Based on the information provided by Lilydale Community House Inc in its Declaration, and the further information supplied on its behalf by NHV:

a.If the notification time was before 6 June 2023, I cannot be satisfied employees were distributed with a copy of the NERR within 14 days of the notification time for the proposed agreement, or at all, in accordance with s 173(3) (as at 5 June 2023); and

If the notification time was after 6 June 2023 (as was stated in the Declaration), it does not appear Lilydale Community House Inc was obliged to distribute a NERR to its employees. However, there is no evidence before me that it informed employees of their right to be represented in bargaining for the Agreement, including by an employee organisation or by another bargaining representative of their choice, at such a time and in such a manner that the employees had a reasonable opportunity to be represented in bargaining. I note that this was despite several opportunities for the information to be provided to the Commission, through NHV.

On this basis, the Agreement will not be approved in respect of Lilydale Community House Inc.

Providing employees with information about the time, place and method of voting

In its Form F17C Declaration, Stawell Neighbourhood House Inc did not provide the date of the commencement of the access period in relation to the agreement. It indicated it distributed a NERR to employees on 3 May 2023 (later confirmed by NHV to be the notification time in respect of this employer). In information provided to the Commission on 7 April 2025, NHV advised that the access period in respect to Stawell Neighbourhood House Inc could not be substantiated. In the provision of this information, NHV appeared to concede that, on the basis of this information, the Commission may conclude the agreement not be approved.
Without having been provided with this information I cannot reach a state of satisfaction about several matters relating to the approval of the Agreement with respect to Stawell Neighbourhood House Inc, including whether it provided employees with the time, place and method of voting on the agreement by the start of the access period.
On this basis, the Agreement will not be approved in respect of Stawell Neighbourhood House Inc.
In material provided the Commission by NHV on 23 and 30 April 2025, it was confirmed that the following employers did not provide at least 7 days notice to employees of the time, place and method of voting on the agreement:

a.Deans Marsh Community Cottage Inc, (5 days)
b.Gellibrand Community House Incorporated, (4 days)
c.Kerrimuir Neighbourhood House Inc, and (6 days)
d.Goonawarra Neighbourhood House Inc (4 days)
e.Angliss Neighbourhood House – 5 days

On 19 May 2025 I advised the bargaining representatives of my provisional view that I should exercise my discretion to disregard this shorter timeframe as a minor error or technical defect, in regard to these employers, particularly on the basis that their employees were unlikely to have been disadvantaged by the shorter access period prior to the vote. None of the bargaining representatives opposed that provisional view. I confirm that provisional view, and intend to disregard these shorter timeframes as minor errors or technical defects. In relation to any of these employers with a notification time after 6 June 2023, I also consider it appropriate to overlook the fact that less than 7 days was provided to employees as to notice of the time, place and method of voting on the agreement, taking into account the nature of the operation of the Statement of Principles and for the same reasons as outlined above.
In information provided to the Commission on 7 April 2025, NHV advised that St Arnaud Neighbourhood House Inc, Reservoir Neighbourhood House and Yarraville Community Centre commenced their access period and commenced an employee vote on the same day. Each of these employers specified a notification time prior to 6 June 2023. In the provision of this information, NHV appeared to concede that, on the basis of this information, the Commission may conclude the agreement not be approved. Also, in information provided to the Commission on 7 April 2025, NHV appeared to advise that that Neighbourhood House Barwon commenced its access period and commenced its vote on the same day. The notification time for this employer was 2 May 2023.
On 19 May 2025 I advised the bargaining representatives of my provisional view that the agreement should not be approved in respect of these employers. The Commission cannot be satisfied the relevant employees were not disadvantaged by having no notice at all of the time and method of the vote.
None of the bargaining representatives opposed this provisional view. I therefore confirm this provisional view and the Agreement will not be approved in respect of St Arnaud Neighbourhood House Inc, Reservoir Neighbourhood House, Yarraville Community Centre and Neighbourhood House Barwon.

Obtaining written agreement from each bargaining representative to the making of the request that employees approve the agreement by voting for it.

On 30 April 2025 I received a submission from ASU in which it explained the circumstances in which it provided NHV with its written agreement that employees be asked by the relevant employers to approve the agreement by an employee vote.
On 30 April 2025 a submission was filed by NTEU. This submission said[18]:
The NTEU was not informed by Neighbourhood Houses Victoria Inc. that employees to be covered by the proposed Agreement were being asked to vote to approve the Agreement.
The NTEU therefore did not provide written agreement to the Neighbourhood Houses Victoria Inc that the proposed Agreement be put to employees for approval by vote.
On 16 May 2025 a mention was conducted in relation to this matter in which NHV confirmed it seeks that the Commission exercise its discretion to overlook the absence of written agreement from NTEU that the relevant employees be asked to vote on the agreement pursuant to s 188(5)(ab) of the Act. The NTEU did not oppose this request.
Section 180A(1) of the Act provides, explicitly, that the section applies to a proposed enterprise agreement that is a multi-enterprise agreement and, as I have found above, the present agreement is clearly such an agreement.
Section 180A(2) of the Act provides an employer must not request its employees approve an enterprise agreement of this kind, without the requirements as to written agreement or a voting request order being met.
The application filed by NHV in seeking approval of this agreement, and the amended application, both identified NTEU as a bargaining representative for the proposed agreement, and it appears clearly this was the case.
There appears to be no contest that NTEU did not provide its written agreement to the making of a request by the employers that their employees approve the proposed agreement. It is not asserted that a voting request order has been made.
In these circumstances, the employees of the post-reform employers should not have been asked to vote on the proposed agreement.
As mentioned above, s 188(5) provides the Commission with discretion to overlook some minor procedural or technical errors if it satisfied that the employees were not likely to have been disadvantaged by those errors. The requirement at s 188A is encompassed within the discretion by operation of s 188(5)(ab)
I consider that the requirement in s 180A is not easily dispensed with. It seems likely that the circumstances in which the Commission might disregard a failure to comply with s 180A pursuant to s 188(5) is likely to be extremely limited. Ordinarily, it seems unlikely such a failure could be characterised as minor. However, in the circumstance before me, I consider it carries significant weight that the Union itself submits the error should be disregarded, presumably, from the perspective of its members who it considers not to have been disadvantaged by it. Above, I also outlined that I have considered it appropriate in this matter to take into account several of the circumstances of this application, including the size of the employers concerned and their obvious lack of legal or industrial expertise. I consider it unlikely employees will have been disadvantaged by the failure to obtain the NTEU’s written agreement for the votes to be conducted. With this in mind, I consider it appropriate to disregard the absence of written approval of the NTEU to provide its written agreement in accordance with s 188(5).
I note for completeness that in the matter before me, written agreement was provided by the ASU to NHV. Section 180A provides written agreement must be provided to “the employer”. On one view, the requirement set out in s 180A may require written agreement be provided to each individual employer – an onerous task if required – where large numbers of employers may be involved. However, I consider it more likely that the written agreement provided by each bargaining representative who is an employee organisation may be expressed in general terms as regards all of the participating employers, without necessarily nominating each by name. It is likely satisfactory if this generalised agreement is provided to a bargaining representative acting on behalf of the employers (as was the case here). To the extent this is not correct, I consider it appropriate to overlook the absence of written agreement having been provided to each individual employer concerned with the Agreement pursuant to s 188(5) of the Act.

The inclusion of several additional employers in final materials

On 5 May 2025 I asked NHV to provide to the Commission a comprehensive list of the employers in respect of whom it is sought that the Agreement be approved. For some reason, several employers were included in its response who had not filed an F17C Declaration in support of the Agreement. I later indicated to NHV that I could not reach a state of satisfaction as to a range of matters associated with the approval of the Agreement, regarding those employers and the Agreement would not be approved in relation to those employers. NHV did not cavil with this decision.

Genuine agreement

On the basis of the foregoing and the material before me, I am satisfied that the employees of each of the employers named in Annexure A genuinely agreed to the Agreement. For the avoidance of doubt, this excludes:

a.Lilydale Community House Inc.
b.Stawell Neighbourhood House Inc.
c.St Arnaud Neighbourhood House Inc.
d.Reservoir Neighbourhood House
e.Yarraville Community Centre
f.Neighbourhood House Barwon

BOOT issues and undertakings

In response to several issues raised with the bargaining representatives in relation to its application, NHV has provided written undertakings, a copy of which are attached in Annexure B.
The undertakings are provided in an appropriate form but are not signed by each of the relevant employers[19] – rather, by NHV on their behalf, pursuant to its authorisation to do so. In Re Application by United Workers Union[20] a Full Bench of the Commission accepted undertakings signed by bargaining representatives on behalf of relevant employers covered by a multi-employer agreement on the basis the bargaining representatives had authority to sign the undertakings on their behalf. I propose to adopt that approach in this matter, and accept the undertakings signed by NHV on behalf of the employers listed in Annexure A. To the extent that it is necessary, I waive the requirements of reg 2.07 of the Fair Work Regulations 2009 (the Regulations) in accordance with s 586(b) of the Act.
I sought the views of the bargaining representatives in relation to the undertakings provided. On the basis of the responses provided, the undertakings were modified, and later confirmed as satisfactory by all bargaining representatives.
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.
The undertakings provide that, among other things, where one of the Awards which would otherwise cover employees covered by the Agreement contains a term which is more beneficial to an employee covered by the Agreement than a provision within it, the term will apply to and bind the Employer as if it were a term of the Agreement.
The undertakings also provide that the wage rates applicable to employees covered by the Agreement shall be no less than those provided by the applicable Awards.
The Agreement also contains several benefits to employees not provided for in the relevant Awards, including additional “ex gratia” annual leave, gender affirmation leave and provision to use personal leave to care for unwell domestic pets.
On the basis of the undertakings provided, I am satisfied that each Award covered employee and each reasonably foreseeable employee for the Agreement will be better off overall than if the relevant modern Award applied to that employee.

Interaction with the National Employment Standards

NHV provided an undertaking in relation to the interaction between the Agreement and the National Employment Standards (NES) – the NES precedence undertaking. This undertaking, which is taken to be a term of the Agreement pursuant to s 191(1) of the Act, provides that where there is an inconsistency between the Agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of any inconsistency. 
On this basis, I am satisfied that the apparent inconsistencies with the NES outlined below do not prevent the approval of this Agreement:

a.Clause 33.1 of the Agreement provides for the manner in which employees accrue personal leave. Section 96(2) of the Act provides personal/carer’s leave accrues progressively during a year of service (other than periods of employment as a casual employee of the employer) according to the employee’s ordinary hours of work, and accumulates from year to year. Where such an accrual methodology is more beneficial to an employee covered by the agreement than the method set out in clause 33.1 the NES provision will apply instead, by way of the NES precedence undertaking.
b.Clause 33.2 of the Agreement provides that to be entitled to sick leave on full pay an employee shall produce a certificate from a legally qualified medical or other relevant practitioner immediately on return to work. Additionally, clause 33.3 of the Agreement provides that absences on sick leave either side of a public holiday shall not be paid unless a medical certificate, statutory declaration or other evidence satisfactory to the employer is provided within seven days of return to work. Section 107(3) of the Act requires that the evidence which may be required in respect to personal/carer’s leave must be of a kind that would satisfy a reasonable person and is less prescriptive than clauses 33.2 and 33.3 of the Agreement. As a result of the NES precedence undertaking, if these clauses operate to provide less benefit than would apply through the application of s 107(3) of the Act, they will have no effect to the extent of inconsistency.
c.A similar scenario exists with respect to clause 33.11 of the Agreement, which deals with carer’s leave. In relation to carer’s leave of a kind provided for by the NES (which does not include leave in respect to unwell domestic pets), the operation of the NES precedence clause means if the more prescriptive evidence requirements operate to an employee’s detriment, the more beneficial entitlement provided for arising from s 107(3) will prevail.
d.Clause 33.14 of the Agreement provides that the employee shall, wherever practicable, give the employer notice prior to the absence of the intention to take leave, the name of the person requiring care and their relationship to the employee, the reasons for taking such leave and the estimated length of absence and if it is not practicable for the employee to give prior notice of absence, the employee shall notify the employer by telephone of such absence at the first opportunity on the day of absence. Section 107(2) provides that notice must be given to the employer as soon as practicable (which may be a time after the leave has started). Clause 33.14 of the Agreement is therefore more prescriptive than that provided for in the Act and, if it operates to provide less benefit than would apply through the application of s 107(3) of the Act, it will have no effect to the extent of inconsistency.

Mandatory terms

Flexibility Term

The flexibility term provided for at clause 7.8 of the agreement does not comply with s 203 of the Act because it does not state that an Individual Flexibility Agreement (IFA) can be terminated by giving written notice of not more than 28 days, nor does it require that the employer provide an employee with a copy of an IFA within 14 days of it being made. None of the employers asked their employees to vote on the agreement prior to 26 February 2025. In accordance with s 204(3) of the Act, the model flexibility term set out in Schedule 2.2 of the Regulations will be taken to be a term of the Agreement[21].

Delegates Rights Term

While clause 6 of the Agreement is an apparent delegates rights term, it is inferior to the delegates rights terms provided for in each of the relevant Awards, in several respects. In accordance with s 205A(2) of the Act, the delegates rights clause provided for at clause 7A of the Children’s Services Award 2010 shall apply to employees covered by the agreement, and clause 6 shall have no effect.

Nominal expiry date

Clause 2.5 of the Agreement provides that the nominal expiry date is “July 2028”. In further material provided to the Commission, it was clarified that it was intended the nominal expiry date of the Agreement be 19 July 2028 – an undertaking has been provided by NHV to this effect.

Agreement signature

Regulation 2.06A of the Regulations provides that an application for approval of an enterprise agreement must be accompanied by a copy of the agreement signed by each employer. A copy of the Agreement has been provided, but it is only signed by NHV on behalf of each relevant employer pursuant to its authority to do so. In Re United Workers Union a Full Bench of this Commission took a similar approach to that outlined above in respect to undertakings, and accepted a copy of the relevant multi-employer agreement signed by the bargaining representatives pursuant to their authority to do so. I intend to adopt the same approach here, but, for the avoidance of doubt, also waive compliance with reg 2.07 of the Regulations in accordance with s 586(b) of the Act.

Late application

Section 185(3)(a) of the Act provides that an application for approval of an agreement must be made no later than 14 days after the agreement being made. To the extent that the application was lodged after this time, particularly taking into account the matters I outlined above in relation to the size and expertise of the employers covered by the Agreement, I consider that it is fair to extend the period to the date on which the application was lodged.

Bargaining representatives coverage

The National Tertiary Education Industry Union (NTEU), the Australian Municipal, Administrative, Clerical and Services Union Vic / Tas Authorities and Services Branch (ASU), each being a bargaining representative for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the NTEU and the ASU.

Approval 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 Agreement is approved in respect to the employers listed in Annexure A. In accordance with s 54 of the Act, the Agreement will operate 7 days after approval. Its nominal expiry date is 19 July 2028.

Amendment of the agreement

Schedule 5 if the Agreement is entitled “List of Respondents” but simply contains the words “insert list”. Undoubtedly, this Schedule was intended to contain the list of the employers covered by the Agreement.
On 5 May 2025 I indicated to the bargaining representatives that, if the agreement was approved, I would exercise my power under the Act to amend the Agreement to include at Schedule 5 the list of the employers in respect of whom the Agreement is approved, and who are covered by it. There was no objection to this proposition.
Section 218A of the Act provides that the Commission may ay vary an enterprise agreement to correct or amend an obvious error, defect or irregularity (whether in substance or form). It is akin to the slip rule found in s 602 of the Act, which allows the Commission to correct or amend an obvious error, defect or irregularity in relation to a decision of the Commission. The evident purpose of s.218A is to remove complexity associated with varying enterprise agreements containing obvious errors, defects or irregularities by simplifying the process by which corrections may be made.
The form of Schedule 5 of the agreement is an apparent defect, obviously intended to contain the names of the employers covered by the Agreement. The Agreement is varied to incorporate in Schedule 5 the list of employers that appears at Schedule A of this Decision.
The variation will come into effect on the same day as the agreement commences operation.
The agreement, as varied, is attached to this decision.

COMMISSIONER

ANNEXURE A

Neighbourhood Houses Victoria Inc

Alamein Neighbourhood A Learning Centre Inc

Allwood Neighbourhood House Inc

Anglesea Community House Inc

Angliss Neighbourhood House

Ararat Neighbourhood House

Arrabri Community House Inc

Ashburton Community Centre Inc

Aspendale Gardens Community Service

Attwood House Community Centre Association

Balla Balla Community Centre Inc.

Ballarat East Neighbourhood House Inc

Ballarat Neighbourhood Centre Inc

Balwyn Community Centre Inc

Beaconsfield Neighbourhood Centre Inc

Belgium Avenue Neighbourhood house Inc.

Bellarine Training and Community Hub Inc

Belvedere Community Centre INC.

Bendigo Neighbourhood Hub Inc

Bennettswood Neighbourhood House

Birallee Park Neighbourhood House Inc

Birchip Neighbourhood House Inc

Blackburn North Neighbourhood House Inc

Blind Bight Community Centre Management Committee Inc

Bonnie Doon Community Group Inc

Boort Resource and Information Centre Inc

Bowen Street Community Centre Association INC

Braybrook and Maidstone Neighbourhood House Incorporated

Cann River Community Centre

Canterbury Neighbourhood Centre Inc

Caulfield South Community House

Central Highlands Association of Neighbourhood Houses Inc

Central Ringwood Community Centre Inc

Chelsea Heights Community Centre Inc

Clota Cottage Neighbourhood House Inc

Cobram Community House Inc

Community Centre Swifts Creek Inc

Corinella and District Community Centre Inc

Craig Family Centre

Cranbourne Community Centre

Creeds Farm Living and Learning Centre

Darley Neighbourhood House and Learning Centre Inc

Daylesford Neighbourhood Centre Inc

Deans Marsh Community Cottage Inc

Deddick Valley Isolated Community Group

Dixon House Neighbourhood Centre INC

Doveton Neighbourhood Learning Centre

Duke Street Community House Association

Echuca Neighbourhood House Inc

Elwood St Kilda Neighbourhood Learning Centre Incorporated

Endeavour Hills Neighbourhood Centre Inc

Farnham Street Neighbourhood Learning Centre

Finbar Neighbourhood House Inc

Forrest & District Neighbourhood House

Geelong West Neighbourhood House Inc

Gellibrand Community House Incorporated

Glen Eira Adult Learning Centre Inc

Glen Park Community Centre Inc

Godfrey Street Community House Inc

Goonawarra Neighbourhood House Inc.

Hallam Community Learning Centre Inc

HAMILTON COMMUNITY HOUSE INC.

Hampton Park Community House Inc

Hastings Community House Inc

Heathcote Community House Inc

Heyfield Community Resource Centre Inc

Holden Street Neighbourshood House Inc

Hopetoun & District Neighbourhood House Inc

Horsham Neighbourhood House Inc.

Iramoo Community Centre Inc

Jamieson Way Community Centre

KENSINGTON NEIGHBOURHOOD HOUSE INC.

Kerrie Neighbourhood House Inc

Kerrimuir Neighbourhood House Inc

Kew Neighbourhood Learning Centre Inc

Kilmore Community Centre

Lakes Entrance Neighborhood House Inc.

Lancefield Neighbourhood House Inc

LAURELS EDUCATION AND TRAINING INC

LINK Neighbourhood House Inc

Living & Learning Pakenham Inc

Livingstone Community Centre

Loch Sport Community House Inc

Long Gully Neighbourhood Centre Inc.

Longbeach Learning and Activity Centre

MACE INCORPORATED

Maffra Neighbourhood House Inc.

Maldon Neighbourhood Centre Inc

Manna Gum Community House Inc

Mitcham Community House

Mordialloc Neighbourhood House Inc

Mount Eliza Neighbourhood House Inc

Mount Evelyn Community House Inc

Mount Street Neighbourhood House Incorporated

Mountain District Women's Co-operative Ltd

Nathalia District Community Association Inc

NEIGHBOURHOOD HOUSE MURCHISON (VIC) INCORPORATED

Neighbourhood Houses Gippsland Inc

NETWORK OF INNER EAST COMMUNITY HOUSES INC

Network West Inc

Newlands and East Coburg Community Hubs Inc

Nhill Neighbourhood House Learning Centre Inc

Noble Park Community Centre Inc

North & West Melbourne Neighbourhood Centre Inc

North Carlton Railway Neighbourhood House

North East Neighbourhood House Network Inc

North Ringwood Community House Inc

North West Neighbourhood House Network Inc

Notting Hill Community Association Inc

Oakgrove Community Centre

OPEN DOOR NEIGHBOURHOOD HOUSE INC

OUTLETS CO-OP NEIGHBOURHOOD HOUSE LTD

Pangerang Community Hub lnc.

Park Orchards Community House and Learning Centre Incorporated

Phoenix Park Neighbourhood House Inc

Pines Learning Incorporated

Port Fairy Community Group Inc

Power Neighbourhood House

Prace Inc

Prahran Place Ltd

Pyalong Neighbourhood Houses Inc

Pyrenees Community House Incorporated

Rainbow Learning Group & Neighbourhood House

Red Cliffs Community Resource Centre Inc

Reynard Street Neighbourhood House Inc

Richmond Neighbourhood Centre

Robinvale Network House Inc

Rochester Community House Inc

Rosewall Neighbourhood Centre Inc

Rushworth Community House Inc

Rye Community House Inc

Seville Community Group

Seymour & District Community House Inc

Shared Learning and Activities Murtoa

Simpson & District Community Centre Inc

South Kingsville Community Centre Inc

Southport Community Centre

Span Community House

Springvale Learning and Activities Centre Inc

Sunbury Neighbourhood House Inc

Surrey Hills Neighbourhood Centre Inc

Sussex Neighbourhood House Inc

Swan Hill Neighbourhood House Inc.

Tatura Community House Inc

The Grange Community Centre Inc

Thomastown Neighbourhood House

Toolangi Castella District Community House Inc

Torquay Community House Inc

Trentham Neighbourhood Centre Inc

Trudewind Road Neighbourhood House Inc

Upper Murray Regional Neighbourhood House Collective Incorporated

Venus Bay Community Centre

Vermont South Community House Incorporated

Violet Town Community House

Waminda Inc

Warracknabeal Neighbourhood House and Learning Centre Inc

Warragul Community House

Waverley Community Learning Centre Inc

Wavlink Inc

Wedderburn Community House

Wendouree Neighbourhood Centre Inc

Whittlesea Community House Inc

Williamstown Community and Education Centre Inc

Winchelsea Community House Inc.

Wingate Avenue Community Centre Inc

Woodend Neighbourhood House Inc

Woori House Inc

Wyndham Park Community Centre

Yackandandah Community Centre Inc

Yarrawonga Neighbourhood House Inc

Yarrunga Community Centre Inc

Yea Community House

ANNEXURE B

[1] Fair Work Act 2009 s 577(1)(b)

[2] Fair Work Act 2009 s 578

[3] Fair Work Act 2009 s 171

[4] PR785742 , PR785732, PR785838

[5] Fair Work Act 2009, Schedule 1, cl 66

[6] Fair Work Act 2009 s 173(1)

[7] Fair Work Act 2009 s 173(1) as at 5 June 2023

[8] Transport Workers Union of Australia v Hunter Operations Pty Ltd[2014] FWC 7469

[9] Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023

[10] Fair Work Act 2009 s 180(4) as at 5 June 2023

[11] Fair Work Act 2009 s 180(3) as at 5 June 2023

[12] Shop Distributive and Allied Employees Association v Allen Family Pty Ltd t/a Subway Findon, Subway Broken Hill, Subway Kadina, Subway Port Adelaide, Subway Port Pirie[2024] FWCFB 48 [76]

[13] Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Act 2018

[14] Fair Work Act 2009 s 188(5) as at 5 June 2023

[15] [2019] FWCFB 318

[16] Ibid [117]

[17] PR785838, [2025] FWC 952

[18] NTEU submissions 30 April 2025

[19] In this regard, see reg 2.07 of the Fair Work Regulations 2009.

[20] [2024] FWCFB 461

[21] As none of the relevant employees were asked to vote on the agreement prior to 26 February 2025, the new model flexibility term provided for in the Fair Work (Model Terms) Determination 2025 (PR784579) does not apply

Printed by authority of the Commonwealth Government Printer

< AE529112 PR787535 >

[2025] FWCA 1713

22 MAY 2025