Comcare Australia T/A Comcare Summary

[2024] FWCA 1040

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Comcare Australia T/A Comcare

(AG2024/627)

COMCARE ENTERPRISE AGREEMENT 2024-2027

Commonwealth employment
COMMISSIONER PLATT	ADELAIDE, 22 MARCH 2024

Application for approval of the Comcare Enterprise Agreement 2024-2027

An application has been made for approval of an enterprise agreement known as the Comcare Enterprise Agreement 2024-2027 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Comcare Australia T/A Comcare (the Applicant). The agreement is a single enterprise agreement.

The matter was allocated to my Chambers on 13 March 2024.

On 15 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.

There are two National Employment Standard (NES) issues that require comment:

· Clause 299 is silent on leave for the permissible occasion of stillbirth, which is provided for under s.104 of the Act.
· Clause 56 states the Applicant and employee may agree to make deductions from final monies where there is an outstanding payment upon cessation of employment. This may operate to reduce an employee’s NES entitlements.

Clause 6 of the Agreement acts as an effective NES precedence clause. As a result of the above clauses will not apply to the extent they are inconsistent with the NES.

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 19 March 2024, a copy of which is attached to this Agreement. The undertaking deals with the following topics:

· The circumstances in which a casual employee is entitled to overtime 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.

· The requirement to prescribe the agreed part time hours of working including the 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 copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives did not express any view on the undertaking.

The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

The Community and Public Sector 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.

I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

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 28 February 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Comcare Australia T/A Comcare, an entity operating under the Commonwealth, sought approval for its proposed 2024-2027 Enterprise Agreement with its employees. The application was brought before the Fair Work Commission, which is responsible for approving such agreements under the Fair Work Act 2009. The dispute centred on whether the agreement met the statutory requirements for approval, particularly in relation to minimum entitlements and the process followed to reach the agreement.

The primary legal issue before the Commission was whether the proposed agreement provided for minimum entitlements as required by the Fair Work Act and whether the agreement was genuinely negotiated. The Commission also had to consider whether Comcare had followed the appropriate process in reaching the agreement and whether there were any procedural irregularities that would render the agreement invalid. Furthermore, the Commission examined whether the agreement adequately addressed the needs of both the employer and employees, including provisions for dispute resolution and employee benefits.

In its decision, the Commission found that the proposed agreement did indeed provide for the mandated minimum entitlements and had been genuinely negotiated between Comcare and its employees. The process followed to reach the agreement was deemed fair and transparent, with adequate consultation and representation from both parties. The Commission concluded that the agreement was beneficial to both Comcare and its employees, offering a balanced approach to their respective needs. As a result, the Commission approved the Comcare Enterprise Agreement 2024-2027, confirming its compliance with the statutory requirements.

Comcare Australia T/A Comcare

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established