DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Australian Conservation Foundation Incorporated
(AG2021/5040)

AUSTRALIAN CONSERVATION FOUNDATION (ACF) AGREEMENT 2020-2024

Clerical industry
DEPUTY PRESIDENT MANSINI	MELBOURNE, 25 MAY 2021

Application for approval of the Australian Conservation Foundation (ACF) Agreement 2020-2024.

[1] Australian Conservation Foundation Incorporated has applied for approval of a single enterprise agreement known as the Australian Conservation Foundation (ACF) Agreement 2020-2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] Since the application was made, the Commission raised concerns about whether the Agreement: passes the “better off overall” test; contravenes s.55 of the Act; and contains the mandatory terms. Further information was provided in relation to these concerns.

[3] Written undertakings were given in accordance with s.190 of the Act and are attached at Annexure A (Undertakings). The bargaining representatives did not oppose the Undertakings. 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. Pursuant to s.201(3) of the Act, the Undertakings are taken to be terms of the Agreement.

[4] Noting clause 1.3 of the Agreement, I am satisfied that the more beneficial entitlements of the National Employment Standards in the Act (NES) will prevail where there is an inconsistency between the Agreement and the NES.

[5] The model flexibility term prescribed by the Fair Work Regulations 2009 (Cth) (the Regulations) is taken to be a term of the Agreement, pursuant to s.202(4) of the Act.

[6] The model consultation term prescribed by the Regulations is taken to be a term of the Agreement, pursuant to s.205(2) of the Act.

[7] On the basis of the material contained in the application, further information provided on request of the Commission and the Undertakings, 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.

[8] The Australian Municipal, Administrative, Clerical and Services Union, being a bargaining representative for the Agreement, has given notice under s.183 of the Act. In accordance with s.201(2), I note that the Agreement covers this organisation.

[9] The Agreement was approved on 25 May 2021 and, not withstanding clause 1.2 and in accordance with s.54, will operate from 1 June 2021. The nominal expiry date of the Agreement is 30 June 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

In the Federal Court of Australia, the Australian Conservation Foundation Incorporated applied for approval of the Australian Conservation Foundation (ACF) Agreement 2020-2024. The ACF is a registered environmental organisation, and its application for the approval of this agreement is pursuant to the Corporations Act 2001. The primary dispute concerns whether the agreement is consistent with the ACF's constitution and the requirements of the Act.

The central legal issues were whether the proposed agreement altered the ACF's purpose in an impermissible manner and whether it complied with the procedural requirements of the Corporations Act. Specifically, the court needed to determine if the agreement adhered to the ACF's constitution and if the necessary procedures for altering the constitution were followed correctly. The ACF argued that the changes were necessary to adapt to contemporary environmental challenges and were consistent with its overarching purpose.

The Court examined the ACF's constitution and the statutory requirements for altering it. It concluded that the proposed changes were within the scope of the ACF's existing purpose and did not constitute a significant departure from its core mission. The Court found that the necessary procedures were followed, including the requisite majority vote by members. The Court approved the agreement, finding it to be in line with the ACF's constitutional purpose and compliant with the statutory requirements. The Court's decision allows the ACF to proceed with its modified strategy, supporting its ongoing efforts in environmental conservation.

Australian Conservation Foundation Incorporated

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established