Nunkuwarrin Yunti of South Australia Incorporated

[2023] FWCA 2355

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Nunkuwarrin Yunti of South Australia Incorporated

(AG2023/2365)

NUNKUWARRIN YUNTI OF SOUTH AUSTRALIA INC ENTERPRISE AGREEMENT 2023

Indigenous organisations and services
COMMISSIONER PLATT	ADELAIDE, 28 JULY 2023

Application for approval of the Nunkuwarrin Yunti of South Australia Inc Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Nunkuwarrin Yunti of South Australia Inc Enterprise Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Nunkuwarrin Yunti of South Australia Incorporated (the Applicant). The agreement is a single enterprise agreement.

The matter was allocated to my Chambers on 24 July 2023.

The Applicant has submitted an undertaking in the required form dated 27 July 2023. The undertaking deals with the following topic:

· Despite Schedule 1, the Corporate Services Level 1.1 salary in 2023/24 will be $49,147.27 (not $48,147.27).

A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives that responded, did not express any view on the undertaking.

The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

As the Agreement does not contain a consultation term which meets the requirements of s.205 of the Act, the model consultation term is taken to be a term of the Agreement.

The Australian Nursing and Midwifery Federation South Australian Branch, Australian Municipal, Administrative, Clerical and Services Union South Australian and Northern Territory Branch and Health Services Union SA/NT being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act I note that the Agreement covers these organisations.

I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 30 June 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Nunkuwarrin Yunti of South Australia Incorporated sought approval for the Enterprise Agreement 2023, which was to govern the employment terms of its members. The application came before the Fair Work Commission, as the applicant argued that the agreement was necessary to meet the specific needs of its workforce and improve workplace relations. The dispute centred around whether the agreement complied with the requirements set out in the Fair Work Act 2009, particularly in terms of its fairness and the process by which it was negotiated.

The court had to determine if the agreement was genuinely negotiated, and if it provided fair and reasonable terms for the employees. This involved a detailed examination of the negotiation process and the content of the agreement itself. The applicant had to demonstrate that the agreement was the result of genuine negotiations between the employer and the employees and that it did not disadvantage any party. Additionally, the court considered whether the agreement complied with the "better off overall test," ensuring that the employees would be no worse off financially than under the previous conditions of employment.

The Fair Work Commission found that the applicant had met the necessary criteria. It concluded that the agreement was genuinely negotiated and provided fair and reasonable terms for the employees. The commission noted that the negotiation process was robust, with adequate representation and engagement from both parties. Furthermore, the commission was satisfied that the agreement met the better off overall test, ensuring that employees would not be financially disadvantaged. As a result, the commission approved the Enterprise Agreement 2023.

In approving the agreement, the Fair Work Commission mandated that the terms of the agreement would come into effect on a specified date, subject to certain conditions. The approval was contingent upon the parties adhering to the agreement and resolving any disputes that may arise in accordance with the terms of the agreement itself.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established