Ballarat General Cemeteries Trust

[2024] FWCA 4109

[2024] FWCA 4109

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Ballarat General Cemeteries Trust

(AG2024/3823)

BALLARAT GENERAL CEMETERIES TRUST ENTERPRISE AGREEMENT 2024-2028

Cemetery operations
COMMISSIONER CONNOLLY	MELBOURNE, 25 NOVEMBER 2024

Application for approval of the Ballarat General Cemeteries Trust Enterprise Agreement 2024-2028

1. An application has been made for approval of an enterprise agreement known as the Ballarat General Cemeteries Trust Enterprise Agreement 2024-2028 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Ballarat General Cemeteries Trust (the Applicant). The Agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 28 October 2024.

1. The notification time for the Agreement under s.173(2) was 11 October 2023 and the Agreement was made on 9 October 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 1 November 2024, the Employer was invited to address aspects of the Agreement including through the provision of an undertaking.

1. The Agreement was not lodged within 14 days after it was made. Pursuant to s.185(3)(b) of the Act, I consider it fair to extend the time for making this application to 30 September 2024.

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

·   Compassionate leave - Clause 29 provides for compassionate leave, however, it is silent is relation to the entitlement to when the employee, their spouse, or de facto partner has a miscarriage or gives birth to a stillborn child. This may be inconsistent with s 104(1)(c) of the Act.

·   Withholding/Deduction of monies due to the employee under the NES on termination – Clause 18.5 of the Agreement provides that “ Where an employee is being paid on a 48/52, 49/52, 50/52 or 51/52week employment cycle, and their employment terminates, the Cemetery will either provide additional payment to the employee or recoup payment from the employee's termination benefits, so that the employee is paid for duties actually carried out up to the date of termination.” The effect of this is that this clause appears to permit the employer to withhold monies owing to the employee under the NES, specifically annual leave and long service leave. This raises the issue that this clause may be inconsistent with Chapter 2 Part 2.2 Division 2 of the Act.

·   Annual leave - Clause 40.2 of the agreement which provides the manner in which annual leave accrues in the agreement, is inconsistent with s.87(2) of the Act where annual leave accrues progressively.

1. Clause 6.3 of the Agreement acts as an effective NES precedence clause, in that it states that “No term of this Agreement will operate to exclude any entitlement provided by the National Employment Standards (NES) or to provide any entitlement which is detrimental to an employee’s entitlement under the NES. For the avoidance of doubt, if there is any inconsistency between this Agreement and the NES to the detriment of the employee, the NES will prevail.” As a result of the NES precedence clause, the above clauses will not apply to the extent that they are inconsistent with the NES.

1. The Applicant has provided written undertakings, dated 12 November 2024, and a copy is attached in Annexure A. A copy of the undertaking has been provided to the bargaining representative and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative did not express any view on the undertaking.

1. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement, thus appearing to meet the requirements of s.190(3). The undertaking is taken to be a term of the Agreement.

1. The “The Australian Workers’ 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 7 May 2028.

COMMISSIONER

Annexure A

[1][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.

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