North Australian Aboriginal Justice Agency Summary

[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.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved the North Australian Aboriginal Justice Agency (NAAAJA) and the Australian Services Union (ASU) as the applicant, seeking a variation of the NAAAJA Enterprise Agreement 2020-2024. The application was heard in the Fair Work Commission (FWC), the primary body for resolving workplace disputes in Australia. The applicant sought amendments to the enterprise agreement, particularly focusing on changes to the rostering provisions to address the unique challenges faced by employees in remote locations.

The key legal issues before the FWC included whether the proposed changes to the rostering provisions were necessary to accommodate the specific working conditions of NAAAJA employees, and if these changes would be consistent with the broader objectives of the enterprise agreement. The FWC also had to consider whether the changes would be fair and reasonable, both for the employees and the employer, and if they aligned with the principles of good faith bargaining and industrial conciliation.

The FWC assessed the evidence provided by both parties and concluded that the proposed changes to the rostering provisions were necessary to address the specific needs of NAAAJA employees working in remote areas. The Commission found that the changes were reasonable and would not undermine the integrity of the enterprise agreement. The FWC emphasised that the changes were a fair response to the unique working conditions faced by NAAAJA employees, and that they would promote better work-life balance and job satisfaction. Consequently, the FWC approved the variation of the enterprise agreement as requested by the applicant.

The final orders included specific amendments to the rostering provisions, which were designed to better accommodate the needs of NAAAJA employees in remote locations. The FWC's decision ensured that the enterprise agreement remained fair and effective in addressing the unique challenges faced by the NAAAJA workforce.

North Australian Aboriginal Justice Agency

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established