Australian Capital Territory T/A Cultural Facilities Corporation
[2024] FWCA 662
•20 FEBRUARY 2024
| [2024] FWCA 662 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Australian Capital Territory T/A Cultural Facilities Corporation
(AG2023/5287)
ACT PUBLIC SECTOR CULTURAL FACILITIES CORPORATION ENTERPRISE AGREEMENT 2023-2026
| State and Territory government administration | |
| DEPUTY PRESIDENT BOYCE | SYDNEY, 20 FEBRUARY 2024 |
Application for approval of the ACT Public Sector Cultural Facilities Corporation Enterprise Agreement 2023-2026
An application has been made for approval of an enterprise agreement to be known as the ACT Public Sector Cultural Facilities Corporation Enterprise Agreement 2023-2026 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Australian Capital Territory Trading As Cultural Facilities Corporation (Employer). The Agreement is a single enterprise agreement.
Undertakings
The Employer has provided written undertakings dated 8 February 2024. Those undertakings are attached at Annexure A to this decision and become terms of the Agreement. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement (as compared to the relevant provisions of the Live Performance Award 2020 (LP Award)), and that the undertakings will not result in substantial changes to the Agreement.
I note that the Community and Public Sector Union, a bargaining representative for the Agreement, has raised concerns as to Undertaking 2, on the basis that this undertaking will become a term of the Agreement that supplements the NES, but is a “detriment to an employee because it puts conditions on the how an employee must work to access the additional week of leave conferred by the NES at s87(1)(b)(ii)”. I do not accept this contention given that Undertaking 2 still gives rise to a more beneficial entitlement to additional annual leave than clause 16.1 of the LP Award does.
Coverage of employee organisation
The Community and Public Sector Union (CPSU), being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers this organisation.
Conclusion
Subject to the undertakings referred to above, 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.[1]
I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 27 February 2024. The nominal expiry date of the Agreement is 31 March 2026.
DEPUTY PRESIDENT
Annexure A
[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act 2009 (FW Act), that commenced operation on 6 June 2023. Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the FW Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for this Agreement was before 6 June 2023. Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. This Agreement was made after 6 June 2023.
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