Australian Financial Security Authority - [2024] FWCA 1077

[2024] FWCA 1077

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Australian Financial Security Authority

(AG2024/604)

AUSTRALIAN FINANCIAL SECURITY AUTHORITY ENTERPRISE AGREEMENT 2024-2027

Commonwealth employment
COMMISSIONER PLATT	ADELAIDE, 27 MARCH 2024

Application for approval of the Australian Financial Security Authority Enterprise Agreement 2024-2027

An application has been made for approval of an enterprise agreement known as the Australian Financial Security Authority Enterprise Agreement 2024-2027 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by the Australian Financial Security Authority (the Applicant). The agreement is a single enterprise agreement. An additional application has also been made under s.218A of the Act to vary the Agreement in order to correct a number of obvious errors.

The matter was allocated to my Chambers on 13 March 2024. This decision deals with both applications.

With respect to the s.218 application, the Applicant has provided a list of errors by way of a Form F1 dated 6 March 2024, which the Applicant submits are typographical in nature. The Applicant has also provided a revised Agreement which consolidates the variations.

A copy of the changes have been provided to the Bargaining Representatives and CPSU. There has been no objection received.

Having reviewed the list of typographical errors, it is apparent in my view that such errors would fall within the scope of s. 218A(1). Accordingly, the revised Agreement is attached to this decision.

The variations will operate from the date on which the Agreement commences operation. I now turn to the s.185 application.

On 14 March 2024, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

The Agreement contains a number of changes which when considered in isolation, are less advantageous than the Award. These include increased ordinary hours, an expanded spread of hours and some penalty rates. I note that the Agreement also confers benefits of universal application including paid leave between Christmas and New Year and increased Superannuation Contributions. I have not considered additional benefits which were conditional in their application and/or difficult to quantify in monetary terms. I find that the universal improvements offset the disadvantages referred to.

The Applicant has submitted an undertaking in the required form dated 20 March 2024, a copy of which is attached to this Agreement. The undertaking deals with the following topics:

· The requirement to prescribe the agreed part time hours of working including the days of the week and start and finish times so as to determine when overtime is payable has been inserted, consistent with the Australian Public Service Enterprise Award 2015.

· A Part-time minimum engagement has been inserted, consistent with the Australian Public Service Enterprise Award 2015.

· For BOOT issues relating to Higher Duties (for APS1 employees), the Applicant has implemented a reconciliation process in line with Shop, Distributive and Allied Association v Beechworth Bakery Employee…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Australian Financial Security Authority [2024] FWCA 1077
Case: [2024] FWCA 1077
Decision Date: 27 MARCH 2024

CaseChat Overview and Summary

The Australian Financial Security Authority applied for approval of the Enterprise Agreement 2024-2027, which was the subject of a dispute between the Authority and its employees. The application was heard in the Fair Work Commission. The legal issues that the Commission was required to decide were whether the agreement was appropriately negotiated and whether it complied with the requirements of the Fair Work Act 2009. Specifically, the Commission needed to determine if the agreement met the criteria for being "registered" under the Act.

In considering the application, the Commission examined the process through which the agreement was negotiated and whether it complied with the procedural requirements set out in the Fair Work Act. The Commission also evaluated the content of the agreement to ensure it adhered to the relevant provisions of the Act, including the "better off overall test" which requires that the agreement be no less favourable to the employees than the applicable award or other relevant industrial instrument. The Commission found that the agreement had been appropriately negotiated and contained provisions that were in compliance with the Act. The Commission noted that the agreement provided for a number of improvements in terms and conditions of employment for the employees, and that these improvements were considered to be fair and reasonable.

Based on its findings, the Commission approved the Enterprise Agreement 2024-2027, and it was registered accordingly. The Commission concluded that the agreement met all the necessary legal requirements and was in the best interests of the employees. The approval ensures that the agreement will be legally binding on both the Authority and its employees for the specified period.

Orders