Nick Church
[2023] FWCA 2632
•18 AUGUST 2023
| [2023] FWCA 2632 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Nick Church
(AG2023/2053)
VICTORIAN DISABILITY SERVICES (NGO) AGREEMENT 2023
| Social, community, home care and disability services | |
| DEPUTY PRESIDENT SAUNDERS | NEWCASTLE, 18 AUGUST 2023 |
Application for approval of the Victorian Disability Services (NGO) Agreement 2023
An application has been made for approval of an enterprise agreement known as the Victorian Disability Services (NGO) Agreement 2023 (Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (Act). The Agreement is a multi-enterprise agreement. The employers covered by the Agreement are set out in Annexure A to this decision.
On 11 August 2023 I issued a decision in this matter relating to a preliminary issue concerning coverage of the Agreement.[1] In that decision I issued directions giving one of the 24 employers covered by the Agreement, Statewide Autistic Services Ltd (SASI), an opportunity to sign the Agreement if it wished to do so, and to provide a signed copy to my Chambers. SASI has not provided the Commission with a signed copy of the Agreement, nor has it provided any undertakings to address the better off overall concern I identified in earlier correspondence to the parties.
I also directed any party or bargaining representative to file submissions if they wished to be heard in relation to my preliminary views that (a) the Agreement cannot be approved insofar as it relates to SASI on the basis that the requirements of s 185(2)(a) of the Act and Regulation 2.06A have not been met[2] and (b) this issue does not have any impact on the application to approve the Agreement insofar as it relates to the other 23 employers. No submissions were received on these issues. I now conclude that the application to approve the Agreement insofar as it concerns SASI is dismissed on the basis that the requirements of s 185(2)(a) of the Act and Regulation 2.06A have not been satisfied by SASI. I am also satisfied that this issue does not have any impact on the application to approve the Agreement insofar as it relates to the other 23 employers.
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 Act, that commenced operation on 6 June 2023.
Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for the Agreement was before 6 June 2023.
Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The better off overall test provisions in Part 2-4 of the Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the agreement was made before 6 June 2023. The Agreement was made on 8 June 2023.
The 23 employers have each provided written undertakings (Undertakings). A copy of the Undertakings is attached in Annexure B to this decision. I am satisfied that the effect of accepting the Undertakings is not likely to:
(a) cause financial detriment to any employee covered by the Agreement; or
(b) result in substantial changes to the Agreement.
The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.
Pursuant to subsection 190(3) of the Act, I accept the Undertakings. The Undertakings are taken to be a term of the Agreement.
Subject to the Undertakings, I am satisfied that each of the requirements of sections 186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.
The Australian Education Union and the Health Services Union, each being a bargaining representative for the Agreement, have given notice under section 183 of the Act that they want to be covered by the Agreement. In accordance with subsection 201(2) of the Act, I note that the Agreement covers each organisation.
The Agreement is approved and, in accordance with section 54 of the Act, will operate from 25 August 2023. The nominal expiry date of the Agreement is 30 June 2024.
DEPUTY PRESIDENT
Annexure A
1. Alkira Centre
2. Bayley House
3. Blairlogie Living and Learning Inc
4. Burke and Beyond
5. Central Bayside Community Health Services (Beter Health Network)
6. Christie Centre
7. Colac Otway Disability Accommodation Inc (CODA)
8. Connect GV
9. Focus Individualised Support Services
10. Goulburn Options Inc
11. Knoxbrooke Inc
12. MiLife-Victoria Inc
13. Monkami Centre Inc
14. Nadrasca Ltd
15. OC Connections Limited
16. Pinarc Disability Support
17. Pinnacle Inc
18. Providing All Living Supports (PALS)
19. The Bridge Inc
20. Uniting (Victoria and Tasmania)
21. Wallara Australia Ltd
22. We Are Vivid (Murray Human Services Inc)
23. Woodbine Inc
Annexure B
[1] [2023] FWC 2009
[2] Malteurop Australia Pty Ltd [2014] FWC 2476
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