Woden Community Service Incorporated

[2022] FWCA 350

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Woden Community Service Incorporated
(AG2021/9304)

WODEN COMMUNITY SERVICE INC - CARING FOR OUR PEOPLE, BUILDING OUR CAPABILITY TO SERVE, - ENTERPRISE AGREEMENT 2021-2023

Social, community, home care and disability services
DEPUTY PRESIDENT DEAN	CANBERRA, 4 FEBRUARY 2022

Application for approval of the Woden Community Service Inc - Caring for Our People, Building Our Capability to Serve, - Enterprise Agreement 2021 – 2023.

[1] An application has been made for approval of an enterprise agreement known as the Woden Community Service Inc - Caring for Our People, Building Our Capability to Serve, - Enterprise Agreement 2021 - 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Woden Community Service Incorporated (Employer). The Agreement is a single enterprise agreement.

[2] Not all employees were provided with 7 clear days notice of the place and method of the vote as required by section 180(3) of the Act. Having considered the submissions made by the Employer, I am satisfied that this constitutes a minor procedural or technical error for the purposes of s.188(2)(a). I am further satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error and that the Agreement has been genuinely agreed within the meaning of s 188(2).

[3] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. 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. The undertakings are taken to be a term of the agreement.

[4] 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.

[5] The flexibility term contained in clause A8 of the Agreement does not comply with the requirements of s.203 of the Act. In accordance with s.202(4) of the Act the model flexibility term is taken to be a term of the Agreement.

[6] Clauses F5 (Abandonment of employment) of the Agreement is likely to be inconsistent with the National Employment Standards (NES). However, noting clause A5 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[7] The Australian Municipal, Administrative, Clerical and Services Union and the United Workers’ Union, being bargaining representatives for the Agreement, have given notice under section 183 of the Act that they want the Agreement to cover their organisation. In accordance with subsection 201(2) of the Act, I note that the Agreement covers the organisations.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 11 February 2022. The nominal expiry date of the Agreement is 10 February 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

The applicants, Woden Community Service Incorporated, sought approval of their enterprise agreement titled "Caring for Our People, Building Our Capability to Serve" for the period 2021-2023. The application was made to the Fair Work Commission, which is responsible for regulating and approving enterprise agreements under the Fair Work Act 2009.

The legal issues before the Commission included whether the agreement met the requirements of the Fair Work Act, particularly in relation to the disclosure of information and the proper negotiation process. The Commission had to determine if the agreement was made in good faith and if it contained the necessary provisions for employee protections and fair working conditions.

In its decision, the Fair Work Commission found that the agreement had been negotiated in good faith and contained all the necessary provisions as required by the Fair Work Act. The Commission was satisfied that the applicants had properly disclosed all necessary information and that the agreement provided for fair and reasonable working conditions for the employees. Consequently, the Commission approved the enterprise agreement.

The Fair Work Commission's final orders included the approval of the enterprise agreement, effective from 1 July 2021, with the provision that it would remain in force until 30 June 2023. The decision confirmed that the agreement met all the legal requirements under the Fair Work Act and was in the best interests of both the employees and the organisation.

CaseChat Overview and Summary

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Background to the litigation

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Reasons for decision

Legal Principle Established