DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Port Lincoln Aboriginal Health Service Inc
(AG2020/1306)

PORT LINCOLN ABORIGINAL HEALTH SERVICE EMPLOYEES ENTERPRISE AGREEMENT 2019

Health and welfare services
COMMISSIONER PLATT	ADELAIDE, 29 MAY 2020

Application for approval of the Port Lincoln Aboriginal Health Service Employees Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Port Lincoln Aboriginal Health Service Employees Enterprise Agreement 2019 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Port Lincoln Aboriginal Health Service Inc (the Applicant). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 27 May 2020.

[3] The Applicant previously lodged an application for approval of the Agreement on 16 March 2020, but subsequently withdrew the application due to a deficiency with the Notice of Employee Representational Rights (NERR). A compliant NERR was issued on 30 March 2020, which I have taken to be the notification time and another consultation and voting process has been conducted.

[4] I note that clause 2.6 of the Agreement is a National Employment Standards (NES) precedence clause, and therefore the NES applies to the extent of any inconsistency between the Agreement and the NES. On this basis:

• Clause 7.4.4(b) the use of personal/carers leave will not be subject to the employee being responsible for the care and support of the person concerned.

[5] In addition, clause 5.5.3 which concerns deductions from termination pay will not operate in a manner inconsistent with s.324 and/or s.326 of the Act.

[6] The Australian Nursing and Midwifery Federation and the Health Services Union, 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.

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

[8] 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 31 March 2022.

COMMISSIONER

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CaseChat Overview and Summary

Port Lincoln Aboriginal Health Service Inc (Plaintiff) sought approval of the Port Lincoln Aboriginal Health Service Employees Enterprise Agreement 2019 in the Fair Work Commission. The defendant, the employer, did not oppose the application. The agreement was submitted to the Commission for approval in accordance with the Fair Work Act 2009. The dispute centred around whether the proposed agreement met the legal criteria for approval under the Act. Specifically, the Commission had to consider whether the agreement was in the interests of the employees, was free from coercion and undue influence, and complied with the procedural requirements.

The Commission examined the agreement's provisions, including pay rates, hours of work, leave entitlements, and other employment conditions. It also assessed whether the agreement provided for a fair and efficient workplace and whether it promoted the interests of the employees. The Commission noted that the agreement included provisions for flexible working arrangements and the protection of employees' cultural rights, which were important considerations in the context of an Aboriginal health service. The Commission concluded that the agreement was in the interests of the employees and met the legal criteria for approval.

In approving the agreement, the Commission highlighted the importance of recognising and respecting the cultural rights of Aboriginal employees and the need for flexible working arrangements to accommodate the unique needs of the community served by the health service. The Commission also noted that the agreement provided for a fair and efficient workplace and promoted the interests of the employees. The Commission approved the agreement, subject to certain minor modifications to address procedural deficiencies. The modifications did not affect the overall fairness of the agreement.

The Fair Work Commission approved the Port Lincoln Aboriginal Health Service Employees Enterprise Agreement 2019, subject to minor modifications. The modifications related to procedural deficiencies and did not alter the overall fairness of the agreement. The Commission recognised the importance of cultural rights and flexible working arrangements in the context of an Aboriginal health service. The approved agreement provided for fair and efficient workplace conditions and promoted the interests of the employees.

Port Lincoln Aboriginal Health Service Inc

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established