Each Limited [2025] FWCA 1667 (19 May 2025)

[1] An application has been made for approval of an enterprise agreement known as the Each Oral Health Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Each Limited (the Applicant). The Agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 7 May 2025.

[3] The notification time for the Agreement under s.173(2) was 19 June 2024 and the Agreement was made on 17 April 2025. Accordingly, the genuine agreement requirements the Agreement is to be assessed under are those applying after 6 June 2023 and the better off overall test (BOOT) is that applying on and from 6 June 2023. [1]

[4] On 13 May 2025, the Employer was invited to address aspects of the Agreement.

[5] There is one National Employment Standards (NES) issue that requires comment:

• Personal/Carers leave: Clause 5.4(l) of the Agreement provides that an employee must notify their manager as soon as possible, and at least one hour before a scheduled shift if unable to work due to illness or injury. This may be inconsistent with s.107 of the Act which provides that notice must only be given as soon as practicable (which may be a time after the leave has started).

[6] Clause 9.5(b) of the Agreement acts as an effective NES precedence clause, in that it states that in "[t]his Agreement is not intended to exclude any part of the NES or to provide any entitlement which is detrimental to an employee's entitlement under the NES. For the avoidance of doubt, the NES prevails to the extent that any aspect of this Agreement would otherwise be more detrimental to an employee." As a result of the NES precedence clause, the above clause(s) will not apply to the extent that they are inconsistent with the NES.

[7] The "Health Services Union Victoria No 1 Branch, trading as the Health Workers Union", 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.

[8] I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A of the Act as are relevant to this application for approval have been met.

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 1 September 2028.