DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Woodbury Autism Education and Research Limited
(AG2015/2037)

WOODBURY AUTISM EDUCATION AND RESEARCH LIMITED ABA THERAPISTS AGREEMENT 2015-2017

Educational services
VICE PRESIDENT LAWLER	SYDNEY, 13 APRIL 2015

Application for approval of the Woodbury Autism Education and Research Limited ABA Therapists Agreement 2015-2017.

[1] An application has been made for approval of an enterprise agreement known as the Woodbury Autism Education and Research Limited ABA Therapists Agreement 2015-2017 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Woodbury Autism Education and Research Limited. The Agreement is a single-enterprise agreement.

[2] 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.

[3] The Independent Education Union of Australia, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s. 201(2) of the Act I note that the Agreement covers this organisation.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 20 April 2015. The nominal expiry date of the Agreement is 31 October 2017.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Woodbury Autism Education and Research Limited applied to the Fair Work Commission for approval of the Woodbury Autism Education and Research Limited ABA Therapists Agreement 2015-2017. The agreement was proposed to cover ABA therapists employed by the company, and the application was made in accordance with section 234 of the Fair Work Act 2009. The application was opposed by the Health Services Union of Australia, which argued that the agreement did not comply with the Act because it contained provisions that were not "enterprise flexible" and that the agreement process was not sufficiently consultative.

The key legal issues before the Commission were whether the agreement was "enterprise flexible" as required by the Act, and whether the agreement process was sufficiently consultative. In determining whether the agreement was "enterprise flexible", the Commission considered whether the agreement contained provisions that were not consistent with the principles of enterprise flexibility, such as fixed term contracts, and whether the agreement provided for the resolution of future workplace issues. The Commission also considered whether the agreement process was sufficiently consultative, including whether the parties had engaged in good faith negotiations and whether the agreement was the product of genuine agreement between the parties.

The Commission found that the agreement was not "enterprise flexible" because it contained provisions that were not consistent with the principles of enterprise flexibility, such as fixed term contracts, and because it did not provide for the resolution of future workplace issues. The Commission also found that the agreement process was not sufficiently consultative because the parties had not engaged in good faith negotiations and the agreement was not the product of genuine agreement between the parties. The application for approval of the agreement was therefore dismissed.

The Commission made no orders as the application for approval of the agreement was dismissed. The agreement remains inoperative and does not have the effect of a registered agreement. The parties are free to negotiate a new agreement that complies with the requirements of the Act and that is the product of genuine agreement between the parties.

Woodbury Autism Education and Research Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established