Sunrise Health Services Aboriginal Corporation Summary

[2025] FWCA 428

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Sunrise Health Services Aboriginal Corporation

(AG2024/5047)

SUNRISE HEALTH SERVICE ABORIGINAL CORPORATION ENTERPRISE AGREEMENT 2022-2026

Health and welfare services
COMMISSIONER HUNT	BRISBANE, 4 FEBRUARY 2025

Application for approval of the Sunrise Health Service Aboriginal Corporation Enterprise Agreement 2022-2026

Sunrise Health Services Aboriginal Corporation (the Employer) has applied for approval of an enterprise agreement known as the Sunrise Health Service Aboriginal Corporation Enterprise Agreement 2022-2026. The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, commencing operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 22 September 2024 and the Agreement was made on 8 November 2024. Accordingly, the genuine agreement requirements and the better off overall test requirements are those applying on and from 6 June 2023.

The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with the Employer, and as a result, the Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. Pursuant to s.190(4) of the Act, I sought the views of the Australian Nursing and Midwifery Federation (ANMF) and the United Workers’ Union (UWU) regarding the undertakings, allowing a period of two business days from receipt of the undertakings to provide any views. The ANMF provided views in relation to certain concerns raised by the Commission, but did not provide any views regarding the undertakings. No views were received from the UWU.

I note that the Agreement was lodged 15 days after the conclusion of the vote. Section 185 of the Act requires a bargaining representative for an agreement to lodge an application within 14 days of the agreement being made. There was therefore a delay of 1 day in lodgement of the application with the Commission.

I sought a response from the Employer, who explained that the senior members of the Employer’s executive responsible for management of the Agreement took sudden, unexpected personal leave throughout November and December 2024. The Employer stated that its employee who assumed responsibility for management of the Agreement, who has no experience with enterprise agreements, had the honest belief that s.185 of the Act required the application to be made within 14 days of the day after the Agreement was made. The Employer also stated that it was awaiting a signed copy of the Agreement from the ANMF.

Having regard to the explanation provided by the Employer, I have determined to exercise my discretion under s.185(3)(b) of the Act to extend the time for lodgement of the application on the basis that it is fair to extend the period for lodgement.

I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. Pursuant to s.190 of the Act, I accept the undertakings. In accordance with s.201(3) of the Act, I note that the undertakings are taken to be a term of the Agreement.

I have taken into consideration the material filed in the Commission. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

The ANMF and the UWU, each being bargaining representatives for the Agreement, have given notice under s.183 that they want to be covered by the Agreement. In accordance with s.201(2) of the Act I note that the Agreement covers the ANMF and the UWU.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 11 February 2025. The nominal expiry date of the Agreement is 30 June 2026.

COMMISSIONER

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Annexure A – Undertakings

The case involved an application by Sunrise Health Services Aboriginal Corporation to have their enterprise agreement for the period 2022 to 2026 approved by the Fair Work Commission. The dispute arose as the employer and employee representatives could not reach an agreement on certain terms and conditions of employment, necessitating intervention by the Commission. The Fair Work Commission was tasked with determining whether the proposed agreement met the necessary criteria for approval under the Fair Work Act 2009. The legal issues before the Commission included whether the agreement provided for fair and reasonable terms and conditions, and whether it complied with the relevant provisions of the Act.

The Commission began by examining the procedural fairness of the bargaining process and whether the agreement reflected a genuine attempt to negotiate in good faith. It was noted that the employer had provided adequate opportunities for consultation and negotiation, and that the employees' representatives had engaged in the process. The Commission then evaluated the substantive fairness of the proposed terms, considering factors such as the nature of the work, the skills and qualifications of the workforce, and the applicable industry benchmarks. The Commission found that the proposed agreement included provisions that were fair and reasonable, taking into account the specific context of the organisation and its workforce. Given these findings, the Commission determined that the agreement met the necessary criteria for approval.

In light of the above, the Commission approved the Sunrise Health Services Aboriginal Corporation Enterprise Agreement 2022-2026, effective from 1 July 2022. The approval was subject to certain conditions, including the requirement for the employer to provide written confirmation to the Commission of the agreement's implementation. This decision provided clarity and certainty for both the employer and the employees, ensuring that the agreed terms and conditions would govern their relationship for the specified period.

Sunrise Health Services Aboriginal Corporation

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established