FWAA 1431
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
MILINGIMBI & OUTSTATIONS PROGRESS RESOURCE ASSOCIATION ENTERPRISE AGREEMENT
VICE PRESIDENT LAWLER
MELBOURNE, 4 MARCH 2011
Application for approval of the Milingimbi & Outstations Progress Resource Association Enterprise Agreement 2010.
 An application has been made for approval of an enterprise agreement known as the Milingimbi & Outstations Progress Resource Association Enterprise Agreement 2010 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Milingimbi & Outstations Progress Resource Association. The Agreement is a single-enterprise agreement.
 The application for approval was filed 7 days out of time. I am satisfied with the explanation provide by Mr Maloney and extend time for the filing of the application.
 Subject to a concern that the Agreement does not pass the better off overall test (BOOT), I am satisfied that the requirements of s.185, s.186 and s.187 have been met in relation to this application.
 I have a concern that the Agreement does not pass the better off over all test because, although the Agreement includes ordinary time hourly rates that are in excess of those in the relevant reference award, there is no provision in the Agreement for penalty rates for work done outside the span of ordinary hours in the award, especially on weekends. An employee who was required to work substantial weekend hours could find themselves materially worse off when compared to what they would have received under the award for such work. The overtime provisions in the Agreement are also less beneficial than the equivalent award terms.
 Having heard the submissions of Mr Maloney and having heard from one of the 4 employees covered by the Agreement, I am persuaded that I should nevertheless approve the Agreement pursuant to the power in s.189. Section 189 provides:
“189 FWA may approve an enterprise agreement that does not pass better off overall test—public interest test
Application of this section
(1) This section applies if:
(a) FWA is not required to approve an enterprise agreement under section 186; and
(b) the only reason for this is that FWA is not satisfied that the agreement passes the better off overall test.
Approval of agreement if not contrary to the public interest
(2) FWA may approve the agreement under this section if FWA is satisfied that, because of exceptional circumstances, the approval of the agreement would not be contrary to the public interest.
Note: FWA may approve an enterprise agreement under this section with undertakings (see section 190).
(3) An example of a case in which FWA may be satisfied of the matter referred to in subsection (2) is where the agreement is part of a reasonable strategy to deal with a short term crisis in, and to assist in the revival of, the enterprise of an employer covered by the agreement.
Nominal expiry date
(4) The nominal expiry date of an enterprise agreement approved by FWA under this section is the earlier of the following:
(a) the date specified in the agreement as the nominal expiry date of the agreement;
(b) 2 years after the day on which FWA approved the agreement.”
 The requirements in s.189(1) are satisfied. The issue is whether I am satisfied as to the matter specified in s.189(2).
 There are exceptional circumstances in this case. The Association’s workplace is in an extremely remote part of Australia - some 500km from the closest town. The Association is a not-for-profit organisation that provides services to the local indigenous community and depends, for all practical purposes, on Government grants to meet the costs of employing its 4 employees. That funding is already set for the existing year and is sufficient only to cover the wage costs implicit in the Agreement. The Association has no realistic prospect of obtaining any additional funds that would be needed to meet any additional costs involved in giving an undertaking to address my concerns in relation to the BOOT. Ms Linfield, one of the four employees confirmed the following. Because of the remoteness of the Association’s operations and the cultural values of the Association’s indigenous workers, weekends do not have the significance that they generally have for workers in the towns and cities of Australia. There are none of the social amenities that are typically accessed on weekends in towns and cities across Australia. Locals simply do not draw a distinction between weekdays and weekends in the manner with which most Australian are familiar. The way in which weather interacts with the Association’s activities, together with the need to accommodate cultural obligations, mean that all employees are happy to be flexible about when they work their ordinary hours (and such flexibility is shown in return in allowing employees to be absent whenever cultural obligations demand it). Ms Linfield confirmed that all of the employees were happy with the Agreement and did not want to see the application for approval fail on account of work occurring on weekends at ordinary time rates. In these circumstances I am satisfied that approval of the Agreement would not be contrary to the public interest.
 I have considered whether this approach could be characterised as racist because it results in indigenous employees being subjected to a substandard agreement in a way that is rarely if ever countenanced in the run of the mill of enterprise agreements. I do not think that such a characterisation is fairly applicable. The circumstances of this case are extraordinary in the plain English meaning of that term. It would be churlish, if not paternalistic, to insist upon undertakings in circumstances where the affected indigenous employees actively support the Agreement in its current form for reasons that appear to them to be eminently sensible, particularly where the funds to meet the cost of such undertakings are simply not available.
 The Agreement is approved and, in accordance with s.54 of the Act, will operate from 11 March 2011. The nominal expiry date of the Agreement is 31 December 2013. I note that the effect of s.189(4) means that the Agreement will in fact expire on 4 March 2013.
Printed by authority of the Commonwealth Government Printer
<Price code A, AE884497 PR507318>