Australian Conservation Foundation Incorporated

[2025] FWCA 394

[2025] FWCA 394

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Australian Conservation Foundation Incorporated

(AG2024/4716)

AUSTRALIAN CONSERVATION FOUNDATION ENTERPRISE AGREEMENT 2024 - 2027

Clerical industry
COMMISSIONER CONNOLLY	MELBOURNE, 31 JANUARY 2025

Application for approval of the Australian Conservation Foundation Enterprise Agreement 2024 - 2027

1. An application has been made for approval of an enterprise agreement known as the Australian Conservation Foundation Enterprise Agreement 2024 - 2027 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Australian Conservation Foundation Incorporated (the Applicant). The Agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 9 December 2024.

1. The notification time for the Agreement under s.173(2) was 1 February 2024 and the Agreement was made on 15 November 2024.  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] 

1. On 17 December 2024, the Employer was invited to address aspects of the Agreement including through the provision of an undertaking.

1. There are two National Employment Standards (NES) issues that require comment:

·   Annual leave: Clause 6.3 of the Agreement provides for annual leave, but it does not provide for an additional week of leave per year for shiftworkers for the purposes of the NES. This is inconsistent with s81(1)(b) of the Act. However, we note that shiftwork does not appear to be provided for under the Agreement and as such no employees would be classified as a shiftworker under the Act/Award. Further to this, we note that employees receive an additional 4 days of recharge leave per year as per clause 6.4.

·   Compassionate leave: Clause 6.6.1 of the Agreement provides for personal leave and clause 6.6.1(iv) it indicates that this encompasses compassionate leave as well as it states personal leave may be taken where a member of an employee’s immediate family or household dies, however, it is silent in relation to compassionate leave for stillbirth/miscarriage and for the serious injury or illness of family or household members as is provided by s.104(1)(b) and (c) of the Act.

1. Clause 1.5 of the Agreement acts as an effective NES precedence clause, in that it states that “Where there is an inconsistency between this Agreement and the NES, and the NES provides a greater benefit, the NES will apply to the extent of the inconsistency”. 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.

1. I note that should roster patterns and/or working arrangements change with respect to part-time and casual work, the parties may make an application to the Commission for reconsideration of the BOOT pursuant to s.227A of the Act.

1. The “Australian Municipal, Administrative, Clerical and Services 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.

1. 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. 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 30 June 2027.

COMMISSIONER

[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 that included those to effect described above.

Printed by authority of the Commonwealth Government Printer

<AE527852  PR783861>