Ngala Children's Services

[2024] FWCA 4681

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Ngala Children's Services

(AG2024/4571)

NGALA CHILDREN’S SERVICES ENTERPRISE AGREEMENT 2024

Children's services
DEPUTY PRESIDENT O'KEEFFE	PERTH, 24 DECEMBER 2024

Application for approval of the NGALA CHILDREN’S SERVICES ENTERPRISE AGREEMENT 2024

An application has been made for approval of an enterprise agreement known as the NGALA CHILDREN’S SERVICES ENTERPRISE 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 Ngala Children's Services (the Applicant). The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 26 June 2024 and the Agreement was made on 5 November 2024 Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.
The Applicant expressed the view that the Agreement passes the Better Off Overall Test (BOOT) and provided a summary of why it expressed this view. Consistent with s.193A(3) of the Act I have given consideration to this view when determining whether the Agreement passes the BOOT.
During the assessment process a potential BOOT issue was identified with respect to shift workers performing early morning and night shifts. I raised this issue with the Applicant and based on the submissions received I am satisfied that there are no employees currently working such shifts and it is not reasonably foreseeable that employees will work such shifts during the life of the Agreement. As such, I regard this concern as resolved.
The Applicant has provided written undertakings (Annexure 1). 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 ss186, 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.

In addition to the application for approval, the Applicant made application for me to correct an obvious error in clause 9.25 of the Agreement. The error was an obvious mathematical error and I have corrected it pursuant to s.586 of the Act. The corrected version of the clause appears in the text of the Agreement.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 31 December 2024. The nominal expiry date of the Agreement is 24 December 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure 1:

The case involved Ngala Children's Services, which sought approval for a proposed enterprise agreement. The matter was heard by the Fair Work Commission. The central dispute was whether the proposed agreement complied with relevant industrial relations laws and adequately represented the interests of both the employer and the employees.

The primary legal issues before the Commission were whether the agreement met the requirements of the Fair Work Act 2009 and whether it provided fair and reasonable terms for the employees. This included assessing whether the agreement was genuinely negotiated and whether it contained terms that were not detrimental to the employees. The Commission also had to consider if the agreement provided adequate protections and benefits, including minimum wage rates, leave entitlements, and other working conditions.

The Commission found that the proposed agreement was genuinely negotiated and met the legal requirements set out in the Fair Work Act. It determined that the agreement provided fair and reasonable terms for the employees, including adequate protections and benefits. The Commission was satisfied that the agreement was in the best interests of both the employer and the employees, and approved the proposed enterprise agreement. The Commission's decision was based on its assessment of the evidence and the legal framework provided by the Fair Work Act. As a result, the application for approval was granted, and the Ngala Children's Services Enterprise Agreement 2024 was approved.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established