Yooralla

[2022] FWCA 228

[2022] FWCA 228

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Yooralla

(AG2021/8544)

Yooralla Disability Support Workers Agreement 2021

Social, community, home care and disability services
DEPUTY PRESIDENT MANSINI	MELBOURNE, 1 FEBRUARY 2022

Application for approval of the Yooralla Disability Support Workers Agreement 2021.

1. Yooralla has applied for approval of a single enterprise agreement known as the Yooralla Disability Support Workers Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

1. Since the application was made, concerns were raised by and with the Commission about whether the pre-approval requirements were met and whether the Agreement passes the “better off overall” test. Further information and evidence was provided in relation to these concerns.

1. The cohort of employees identified on the Applicant’s statutory declaration as covered by the Agreement at the time of the vote included a number of casual employees. Yooralla provided further evidence (which was not opposed) to satisfy the Commission that:

a)all employees, who were employed at the relevant time(s)[1] and covered by the Agreement, were requested to vote; and

b)of the employees who were requested to vote, a proportion of casual employees did not work a shift in the relevant period, however even if those employees had cast a vote it would have been immaterial to the outcome.

1. I am satisfied, on the evidence before the Commission, that the impact of the Applicant requesting a broader than strictly eligible cohort of employees to vote was immaterial and does not prevent approval by the Commission.[2]

1. Written undertakings were given in accordance with s.190 of the Act and are attached at Annexure A (Undertakings). The bargaining representatives either supported or did not oppose the Undertakings. 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.201(3) of the Act, the Undertakings are taken to be terms of the Agreement.

1. Noting clause 2.1 of the Agreement, I am satisfied that the more beneficial entitlements of the National Employment Standards in the Act (NES) will prevail where there is an inconsistency between the Agreement and the NES.

1. On the basis of the material contained in the application, further information and evidence provided on request of the Commission and the Undertakings, 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.

1. The Health Services Union of Australia (identified by separate declarations to be trading as the “Health Workers Union” and the “Health and Community Services Union”, respectively) and the Australian Education Union, being bargaining representatives for the Agreement, have respectively given notice under s.183 of the Act. In accordance with s.201(2) I note that the Agreement covers these organisations.

1. The Agreement was approved on 1 February 2022 and, in accordance with s.54, will operate from 8 February 2022. The nominal expiry date of the Agreement is 1 February 2026.

DEPUTY PRESIDENT

Annexure A

[1]  Appeal by SDA and others [2019] FWCFB 7891.

[2]  National Tertiary Education Industry Union v Swinburne University of Technology [2015] FCAFC 98.

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