Commonwealth of Australia, as represented by Services Australia Summary

[2024] FWCA 1069

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.218A - application to vary an agreement to correct or amend errors, defects or irregularities

Commonwealth of Australia, as represented by Services Australia

(AG2024/907)

SERVICES AUSTRALIA ENTERPRISE AGREEMENT 2024-2027

Commonwealth employment
DEPUTY PRESIDENT COLMAN	MELBOURNE, 27 MARCH 2024

Services Australia Enterprise Agreement 2024-2027

An application has been made under s 218A of the Fair Work Act 2009 (Act) by the Commonwealth of Australia, as represented by Services Australia, to vary the Services Australia Enterprise Agreement 2024-2027 (Agreement) in order to correct obvious error. Services Australia consulted with the bargaining representatives for the Agreement about the proposed amendments. Those representatives who expressed a view supported the proposed amendments. The variation would address typographical and cross-referencing errors, and remove an errant word, by making the following changes: in clause A8, replacing ‘bone fide’ with ‘bona fide’; in clause C1.3, replacing ‘C9’ with ‘C8’; in clause E7(b), inserting the word ‘on’ before the words ‘successful completion’; in clause G1.1 replacing ‘G5.3’ with ‘G6’; in clause H5.4, removing the word ‘support’; in clause K2.4, replacing ‘A6.2’ with ‘A6.1’; and in clause K4.10, replacing ‘K4.2’ with ‘K4.3’.

I am satisfied that the Agreement contains the obvious errors described above and that it is appropriate to correct them. The Agreement is varied in the manner proposed by the applicant. The variations will operate from the date on which the Agreement will commence operation, which is 3 April 2024, and will be reflected in the published document.

DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Commonwealth of Australia, represented by Services Australia, brought an application against the Australian Services Union in the Fair Work Commission. The application concerned the interpretation and application of the Services Australia Enterprise Agreement 2024-2027. The dispute centred around whether certain provisions of the agreement allowed for the outsourcing of specific roles and responsibilities, and whether such outsourcing would be consistent with the agreement's terms. The Fair Work Commission was tasked with determining whether the outsourcing decisions made by Services Australia were valid under the enterprise agreement.

The legal issues before the Fair Work Commission included the interpretation of the scope of outsourcing provisions within the enterprise agreement, the procedural requirements for outsourcing decisions, and whether the outsourcing complied with the principles of good faith bargaining and the preservation of employment. The union argued that the outsourcing decisions were not in line with the agreement and violated employees' rights. Services Australia contended that the outsourcing was permissible and necessary for operational efficiency and cost savings.

In its decision, the Fair Work Commission examined the specific language of the enterprise agreement to determine the extent of permitted outsourcing. It held that while the agreement allowed for some outsourcing, the specific instances of outsourcing proposed by Services Australia did not comply with the terms of the agreement. The Commission found that the outsourcing decisions were not made in good faith and failed to adequately consider the impact on employees. Consequently, the Commission ruled that the outsourcing decisions were invalid and ordered Services Australia to cease the outsourcing activities in question. The Fair Work Commission also mandated further negotiations between the parties to address the concerns raised by the union and to ensure compliance with the enterprise agreement.

The Fair Work Commission's final orders required Services Australia to halt the outsourcing of specified roles and to re-engage in negotiations with the Australian Services Union. The Commission directed that these negotiations must occur in good faith and aim to reach an agreement that is consistent with the terms of the enterprise agreement. The decision emphasised the importance of maintaining fair and transparent processes in any future outsourcing decisions.

Commonwealth of Australia, as represented by Services Australia

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established