Royal Institute For Deaf And Blind Children T/A Nextsense Summary

[2022] FWCA 229

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Royal Institute For Deaf And Blind Children T/A Nextsense
(AG2021/8704)

NEXTSENSE EMPLOYEES’ ENTERPRISE AGREEMENT 2021 - 2023

Health and welfare services
DEPUTY PRESIDENT BOYCE	SYDNEY, 28 JANUARY 2022

Application for approval of the NextSense Employees’ Enterprise Agreement 2021 - 2023

[1] An application has been made for approval of an enterprise agreement to be known as the NextSense Employees’ Enterprise Agreement 2021 - 2023 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Royal Institute For Deaf And Blind Children T/A Nextsense (Employer). The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings dated 23 December 2021. Those undertakings are attached at Annexure A to this decision and become terms of the Agreement. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement (as compared to the relevant provisions of the Health Professionals and Support Services Award 2020; Social, Community, Home Care and Disability Services Industry Award 2010; Children’s Services Award 2010; Educational Services (Teachers) Award 2020; Professional Employees Award 2020; Miscellaneous Award 2020), and that the undertakings will not result in substantial changes to the Agreement.

[3] The following employee organisations (all of which were bargaining representatives for the Agreement), have given notice under s.183 of the Act that they want to be covered by the Agreement:

Australian Education Union (AEU);

Independent Education Union of Australia (IEU);

Health Services Union (HSU NSW/ACT/QLD Branch);

Health Services Union (HSU Victoria No. 3 Branch, trading as the Victorian Allied Health Professionals Association); and

Health Services Union (HSU Victoria No. 4 Branch, trading as the Medical Scientists Association of Victoria).

[4] In accordance with s.201(2) of the Act, I note that the Agreement covers these organisations.

[5] Subject to the undertakings referred to above, 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.

[6] I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES. In this regard, I particularly note clauses 2.6.2, 2.7.2, 9.5.2 (cf. 9.5.1), 9.6.3, 10.2.2 and 10.6 of the Agreement, and the submissions of the Applicant concerning same (dated 23 December 2021) in relation to the application of the NES.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 4 February 2022. The nominal expiry date of the Agreement is 4 February 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the matter of the Royal Institute for Deaf and Blind Children trading as Nextsense, an application was brought before the Fair Work Commission for the approval of the NextSense Employees’ Enterprise Agreement 2021-2023. The dispute revolved around whether the proposed enterprise agreement complied with the statutory requirements for employee conditions and entitlements as outlined in the Fair Work Act 2009. The Commission was tasked with determining if the agreement met the necessary criteria for approval and if it provided fair and reasonable terms for the employees involved.

The primary legal issues addressed by the Commission involved the interpretation and application of the statutory provisions within the Fair Work Act, specifically sections pertaining to the approval of enterprise agreements. The Commission examined whether the agreement provided for the minimum entitlements as mandated by the Act, including minimum rates of pay, leave entitlements, and other conditions of employment. Furthermore, the Commission assessed whether the agreement had been made in good faith and if it met the procedural requirements set forth in the legislation.

Upon reviewing the application and the proposed enterprise agreement, the Commission found that the agreement complied with the statutory provisions and met the criteria for approval. The agreement provided for minimum rates of pay, leave entitlements, and other conditions of employment as required by the Fair Work Act. The Commission determined that the agreement had been made in good faith and that all procedural requirements had been met. As a result, the Commission approved the NextSense Employees’ Enterprise Agreement 2021-2023.

The Commission's decision to approve the NextSense Employees’ Enterprise Agreement 2021-2023 sets a precedent for similar agreements in the future. It is a clear indication that the Fair Work Commission will closely scrutinise enterprise agreements to ensure compliance with the statutory requirements and the provision of fair and reasonable terms for employees. The approval of this agreement is a significant step forward for the Royal Institute for Deaf and Blind Children, as it provides certainty and stability in the employment conditions for its staff.

Royal Institute For Deaf And Blind Children T/A Nextsense

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established