North Australian Aboriginal Justice Agency
[2022] FWCA 2481
•22 JULY 2022
| [2022] FWCA 2481 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.210—Enterprise agreement
North Australian Aboriginal Justice Agency
(AG2021/5391)
NORTH AUSTRALIAN ABORIGINAL JUSTICE AGENCY ENTERPRISE AGREEMENT 2020-2024
| Social, community, home care and disability services | |
| DEPUTY PRESIDENT ASBURY | BRISBANE, 22 JULY 2022 |
Application for variation of the North Australian Aboriginal Justice Agency Enterprise Agreement 2020-2024
An application has been made for approval of a variation to the North Australian Aboriginal Justice Agency Enterprise Agreement 2020-2024 (the Agreement). The application was made by the North Australian Aboriginal Justice Agency pursuant to s.210 of the Fair Work Act 2009 (the Act). The variation concerns clause 29 of the Agreement which deals with time off in lieu of overtime (TOIL). The Agreement was approved on 14 May 2020 and commenced operation on 21 May 2020.[1]
The Agreement was approved with undertakings which operated with respect to several clauses, including clause 29. The undertaking in relation to clause 29 replaced the clause in its entirety (the 2020 TOIL undertaking). That undertaking was required to ensure that the Agreement passed the better off overall test (BOOT). By virtue of s.191(1) of the Act the TOIL undertaking is taken to be a term of the Agreement as it applies to the employer (the Applicant in the present case).
By the present application, the Applicant seeks to vary clause 29 of the Agreement by deleting the clause (including the TOIL undertaking) and replacing it entirely with a new clause 29. The background to the variation is that the 2020 TOIL undertaking had unintended consequences in that it provided an entitlement to overtime in a broader range of circumstances and to a broader cohort of employees, than was necessary to address the BOOT issues raised by the Commission at that time.
Having considered the application and the supporting material appended to it, I am satisfied that each of the requirements of ss.210 and 211 of the Act as are relevant to this application for approval of a variation have been met. Concern I held in relation to whether the Agreement as varied passed the BOOT as required by s. 211(3)(ha), read in conjunction with s. 186(2)(d), were addressed by the Applicant providing undertakings (the 2022 undertakings). I accept those undertakings pursuant to s.212 of the Act and they will be taken to be a term of the Agreement by virtue of s.213.
The consolidated version of the Agreement, as varied, is attached to this Decision as Annexure A.
DEPUTY PRESIDENT
[1] [2020] FWCA 2421.
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