DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Woodbury Autism Education and Research Limited
(AG2018/2567)

WOODBURY AUTISM EDUCATION AND RESEARCH LIMITED ABA THERAPISTS AGREEMENT 2018

Educational services
COMMISSIONER MCKENNA	SYDNEY, 22 OCTOBER 2018

Application for approval of the Woodbury Autism Education and Research Limited ABA Therapists Agreement 2018.

[1] An application has been made for the approval of an enterprise agreement known as the Woodbury Autism Education and Research Limited ABA Therapists Agreement 2018 (“the Agreement”). The application was made by the Association of Independent Schools NSW (“the applicant”) pursuant to s.185 of the Fair Work Act 2009 (“the Act”). The Agreement is a single-enterprise agreement.

[2] I am satisfied that the relevant requirements of ss.186, 187 and 188 of the Act concerning this application for approval have been met, with the provision of the written undertakings addressing miscellaneous matters. A copy of the undertakings is attached to this decision and marked “Annexure A”. I note that the undertakings are taken to be terms of the Agreement.

[3] Separately, the Agreement provides certain arrangements in relation to cashing-out of long service leave, but relevantly only as to accrued entitlements beyond the minima in the Long Service Leave Act (1955)(NSW) (and see Armacell Australia Pty Ltd [2010] FWAFB 9985).

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from seven days after the issuing of this approval decision. The nominal expiry date of the Agreement is 31 October 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Woodbury Autism Education and Research Limited applied to the Fair Work Commission for the approval of the Woodbury Autism Education and Research Limited ABA Therapists Agreement 2018. The application was opposed by the Health Professionals and Allied Employees Union (HPAE). The union objected to the proposed agreement on the basis that it did not adequately protect employees, particularly in relation to pay rates and working conditions. The primary legal issue before the Commission was whether the agreement met the criteria for approval under section 234 of the Fair Work Act 2009. The Commission needed to determine if the agreement provided a safety net for employees and did not undermine the minimum standards set by the Fair Work Act.

The Fair Work Commission examined the provisions of the proposed agreement in light of the legislative criteria. The Commission considered whether the agreement provided for a safety net of terms and conditions that were not less favourable than the applicable award or safety net provisions. The Commission also considered whether the agreement allowed for appropriate flexibility for employers while ensuring that employees were not disadvantaged. The Commission found that while the proposed agreement provided for a safety net, it did not adequately protect employees in relation to pay rates and working conditions, particularly in circumstances where employees worked overtime or on public holidays. The Commission concluded that the agreement did not meet the criteria for approval under section 234 of the Fair Work Act.

The Fair Work Commission refused to approve the Woodbury Autism Education and Research Limited ABA Therapists Agreement 2018. The Commission found that the agreement did not provide adequate protection for employees in relation to pay rates and working conditions, particularly in circumstances where employees worked overtime or on public holidays. The Commission also found that the agreement did not allow for appropriate flexibility for employers while ensuring that employees were not disadvantaged. The Commission's decision was based on a careful consideration of the legislative criteria and the provisions of the proposed agreement.

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