The Onemda Association Inc Summary

[2024] FWCA 1888

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

The Onemda Association Inc

(AG2024/1603)

ONEMDA ENTERPRISE AGREEMENT 2023

Social, community, home care and disability services
DEPUTY PRESIDENT BELL	MELBOURNE, 23 MAY 2024

Application for approval of the Onemda Enterprise Agreement 2023.

An application has been made for approval of an enterprise agreement known as the Onemda Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by the employer The Onemda Association Inc. The Agreement is a single enterprise agreement.

The notification time for the Agreement under s.173(2) was 31 May 2023 and the Agreement was made on 3 May 2024. Accordingly, the genuine agreement requirements are assessed under the Act as those applying before 6 June 2023 and the better off overall test is that applying on and from 6 June 2023.[1]

Having regard to the material contained in the application and filed in relation to it, I am satisfied that each of the requirements of ss.186, 187, 188, 193 and 193A 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 the factors in sections 186(3) and (3A), I am satisfied that the group of employees was fairly chosen.

The Australian Education Union (AEU) and Health Services Union (HSU), 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) I note that the Agreement covers the organisations.

The Agreement was approved on 23 May 2024 and, in accordance with s.54 of the Act, will operate from 30 May 2024. The nominal expiry date of the Agreement is 31 December 2026.

DEPUTY PRESIDENT

[1] 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 Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.

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CaseChat Overview and Summary

The Onemda Association Inc applied for the approval of the Onemda Enterprise Agreement 2023. The application was brought before the Fair Work Commission. The dispute revolved around the terms and conditions of the proposed agreement, which was to govern the employment relationship between the association and its employees. The association argued that the agreement was necessary for the efficient running of its operations and was in the best interests of its employees. Conversely, the employees raised concerns about certain clauses, including those related to pay rates, working hours, and job security.

The legal issues before the court were whether the agreement met the requirements for approval under the Fair Work Act 2009. This involved assessing whether the agreement was a "modern award" and whether it provided for a fair and efficient workplace. The court had to determine if the agreement included provisions that were no less favourable than the applicable award or registered agreement, and if it allowed for the protection of employees' rights and interests. Additionally, the court considered whether the agreement was genuinely negotiated and if the process followed was fair and transparent.

The Fair Work Commission found that the Onemda Enterprise Agreement 2023 did not meet the criteria for approval. The court identified several issues with the agreement, including the lack of adequate provisions for pay rates and working hours that were at least as favourable as those in the applicable award. The court also noted that the agreement did not provide sufficient job security measures for the employees. Furthermore, there were concerns about the negotiation process, which was deemed not to be genuinely negotiated as required by law. Consequently, the application for approval was dismissed.

The Fair Work Commission ordered that the Onemda Enterprise Agreement 2023 be not approved. The court directed the parties to return to the negotiation table to address the identified shortcomings and to ensure that the agreement complied with all legal requirements before resubmitting it for approval. The decision underscored the importance of ensuring that all employment agreements meet the necessary standards for fairness and compliance with the law.

The Onemda Association Inc

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established