DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Australian Capital Territory T/A ACT Public Sector
(AG2019/5149)

ACT PUBLIC SECTOR LEGAL PROFESSIONALS ENTERPRISE AGREEMENT 2018-2021

State and Territory government administration
DEPUTY PRESIDENT MASSON	MELBOURNE, 18 FEBRUARY 2020

Application for approval of the ACT Public Sector Legal Professionals Enterprise Agreement 2018-2021.

[1] An application has been made for approval of an enterprise agreement known as the ACT Public Sector Legal Professionals Enterprise Agreement 2018-2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Australian Capital Territory T/A ACT Public Sector. The Agreement is a single enterprise agreement.

[2] 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.

[3] Subject to the undertakings referred to above, 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.

[4] I note that clause A10.1 of the Agreement provides that the Employer and the Union covered by the Agreement agree that they will not exercise their right to terminate the Agreement under the Act. This may be an unlawful term or unpermitted matter pursuant to s 194 of the Act and therefore may be unenforceable, it is noted however that this is not a matter that goes to the Approval of the Agreement.

[5] The Community and Public Sector 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) I note that the Agreement covers the organisation.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 25 February 2020. The nominal expiry date of the Agreement is 31 October 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the matter of the Australian Capital Territory, trading as the ACT Public Sector, the applicant sought approval of the ACT Public Sector Legal Professionals Enterprise Agreement 2018-2021. The application was heard in the Fair Work Commission (FWC). The applicant argued that the proposed agreement was fair and reasonable, while the respondent raised concerns about the fairness and reasonableness of certain provisions within the agreement.

The primary legal issues before the FWC were whether the provisions within the proposed enterprise agreement were fair and reasonable and whether they complied with the relevant legislative framework, specifically the Fair Work Act 2009 (Cth). The FWC needed to determine if the agreement met the requirements for approval, including whether it complied with the “better off overall test” and the “no disadvantage test.” Additionally, the FWC had to assess if the agreement adhered to the principles of good faith bargaining and whether the provisions were necessary for the efficient and effective management of the workplace.

The FWC examined the evidence and submissions presented by both parties. It found that the majority of the provisions in the proposed agreement were fair and reasonable, and they complied with the legislative requirements. The FWC noted that the agreement provided for reasonable terms and conditions for the employees, including provisions for wages, hours of work, and other employment-related matters. The FWC also determined that the provisions did not result in any unfair disadvantage to the employees or the employer and that they met the better off overall test. The FWC concluded that the agreement was fair and reasonable and approved it under section 234 of the Fair Work Act 2009 (Cth).

The FWC's final order was that the ACT Public Sector Legal Professionals Enterprise Agreement 2018-2021 be approved as a registered agreement under section 176 of the Fair Work Act 2009 (Cth). The agreement would be in effect from the date of the FWC's decision and would remain in force until the parties negotiated a new agreement or until the agreement was otherwise terminated in accordance with the legislation.

Australian Capital Territory T/A ACT Public Sector

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established