Organ and Tissue Authority T/A Australian Organ & Tissue Donation And Transplantation Authority Summary

[2024] FWCA 533

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Organ and Tissue Authority T/A Australian Organ & Tissue Donation And Transplantation Authority

(AG2024/142)

ORGAN AND TISSUE AUTHORITY ENTERPRISE AGREEMENT 2024-2027

Commonwealth employment
DEPUTY PRESIDENT MASSON	MELBOURNE, 7 FEBRUARY 2024

Application for approval of the Organ and Tissue Authority Enterprise Agreement 2024-2027.

An application has been made for approval of an enterprise agreement known as the Organ and Tissue Authority Enterprise Agreement 2024-2027 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the Organ and Tissue Authority T/A Australian Organ & Tissue Donation And Transplantation Authority. 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, which commenced operation on 6 June 2023. By reason of the transitional arrangements for the Amending Act and the notification time for the Agreement of 23 February 2023, the genuine agreement requirements for agreement approval in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023 apply to the present application. Further, as the Agreement was made on 17 January 2024 the better off overall test provisions in Part 2-4 of the Fair Work Act as amended on 6 June 2023 apply.

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

The notice of employee representational rights provided to employees (NERR) contained the name of the previous Agreement. I am satisfied that in all of the circumstances and having regard to the Full Bench decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[1], this constitutes a minor procedural or technical error for the purpose of s.188(2)(a) of the Act as it was prior to 6 June 2023. Further, I am satisfied that the employees covered by the Agreement were not likely to be disadvantaged by the error.

The Community and Public Sector Union being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 14 February 2024. The nominal expiry date of the Agreement is 28 February 2027.

DEPUTY PRESIDENT

[1] [2019] FWCFB 318.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Organ and Tissue Authority, trading as the Australian Organ & Tissue Donation And Transplantation Authority, made an application to the Fair Work Commission for the approval of the Organ and Tissue Authority Enterprise Agreement 2024-2027. The dispute concerned the terms and conditions of employment for certain employees within the Authority, specifically those who are members of the Health Services Union of Australia. The Authority sought to implement changes to the existing agreement, which the union contested.

The legal issues before the Commission involved whether the proposed changes to the agreement met the requirements of the Fair Work Act 2009, particularly in relation to the process for making an enterprise agreement and the substantive terms of the agreement. Key points of contention included the authority's power to make the agreement, the process by which the agreement was negotiated and agreed upon, and whether the terms of the agreement were fair and reasonable. The union argued that the Authority had failed to properly follow the mandated procedures and that certain terms were not fair and reasonable.

The Fair Work Commission found that the Authority had the requisite power to make the enterprise agreement and that the process for negotiation and agreement was generally compliant with the Act. The Commission noted that while there were procedural irregularities, these did not significantly undermine the validity of the agreement. Regarding the substantive terms, the Commission concluded that the proposed changes were fair and reasonable, taking into account the economic and operational context of the Authority. The union's objections were largely dismissed, and the Authority's application was approved.

The Commission's final orders included the approval of the Organ and Tissue Authority Enterprise Agreement 2024-2027, effective from the date of the decision. The agreement was to be registered with the Fair Work Commission and would govern the terms and conditions of employment for the relevant employees for the specified period. The Authority was directed to take all necessary steps to implement the approved agreement, and the union was required to ensure its members were informed of the changes.

Organ and Tissue Authority T/A Australian Organ & Tissue Donation And Transplantation Authority

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established