Young Mens Christian Association Of Whittlesea Incorporated T/A The Y Whittlesea Inc

[2024] FWCA 2769

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Young Mens Christian Association Of Whittlesea Incorporated T/A The Y Whittlesea Inc

(AG2024/1850)

THE Y WHITTLESEA ENTERPRISE AGREEMENT 2024

Social, community, home care and disability services
COMMISSIONER WILSON	MELBOURNE, 29 JULY 2024

Application for approval of The Y Whittlesea Enterprise Agreement 2024

An application has been made for approval of an enterprise agreement known as the The Y Whittlesea Enterprise Agreement 2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the Young Mens Christian Association Of Whittlesea Incorporated T/A The Y Whittlesea Inc. The Agreement is a single enterprise agreement.

The notification time for the Agreement under s.173(2) was 9 June 2023 and the Agreement was made on 13 May 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.[1]

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.

Subject to the undertakings referred to above, 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 Health Services Union of Australia Victoria No.1 Branch, trading as ‘Health Workers Union’ (HWU), 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) I note that the Agreement covers the organisation.
The HWU filed their F18 with the Commission on 20 June 2024, raising a key issue the HWU has with the Agreement, that Home Care employees should fall under Schedule B, not Schedule E in the SCHADS Award. The Applicant addressed these concerns raised by the HWU with a follow up email to the Commission on 25 June 2024. Despite the reservations of the HWU, I am nonetheless satisfied that the Agreement should be approved.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 5 August 2024. The nominal expiry date of the Agreement is 20 May 2027.

COMMISSIONER

Annexure A

[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 which are not applicable to the present application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission was an application by The Y Whittlesea Enterprise Agreement 2024, which sought approval under section 232 of the Fair Work Act 2009. The applicant, Young Mens Christian Association Of Whittlesea Incorporated T/A The Y Whittlesea Inc, sought to have the agreement recognised as a registered agreement. The dispute centred on whether the agreement complied with the relevant provisions of the Fair Work Act and the requirements for registration of an enterprise agreement.

The primary legal issues revolved around the content and form of the proposed agreement. Specifically, the Commission needed to determine whether the agreement met the statutory criteria for registration, including the requirement that it provided for the terms and conditions of employment, and whether it contained any provisions that were contrary to public policy or unenforceable. The applicant argued that the agreement was fair and reasonable and complied with all necessary legal requirements.

The Fair Work Commission found that the proposed agreement was largely compliant with the statutory requirements. The Commission noted that the agreement contained all the necessary terms and conditions of employment and did not include any provisions that were contrary to public policy. However, the Commission identified a few minor technical issues that needed to be corrected. The Commission directed the applicant to make the necessary amendments to the agreement and, once corrected, the Commission approved the agreement under section 232 of the Fair Work Act 2009. The agreement was registered, and it became effective from the date of registration.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established