Commonwealth Of Australia As Represented By The Department Of Social Services

[2024] FWCA 900

[2024] FWCA 900

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Commonwealth Of Australia As Represented By The Department Of Social Services

(AG2024/439)

DEPARTMENT OF SOCIAL SERVICES ENTERPRISE AGREEMENT 2024-2027

Commonwealth employment
COMMISSIONER PLATT	ADELAIDE, 12 MARCH 2024

Application for approval of the Department of Social Services Enterprise Agreement 2024-2027

1. An application has been made for approval of an enterprise agreement known as the Department of Social Services Enterprise Agreement 2024-2027 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Commonwealth Of Australia As Represented By The Department Of Social Services (the Applicant). The agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 1 March 2024.

1. On 4 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.

1. In respect of the Notice of Employee Representational Rights (NERR) deficiency, it appears the Agreement name on the NERR referred to the year 2023, rather than 2024-2027.  I am satisfied taking into consideration s.188(5) of the Act, that the procedural or technical error is minor and that the employees were not likely to have been disadvantaged, and accordingly, that there has been a genuine agreement.

1. There is one National Employment Standard (NES) issue that requires comment:

   ·  Clause 52 provides that on termination, the employer may deduct from the employee's final payment, any amount it is authorised by the employee to deduct, including any overpayment. This provision may operate to reduce an employee’s entitlement to payment of NES entitlements.

1. Clause 6 of the Agreement acts as an effective NES precedence clause. As a result, the above clause will not apply to the extent it is inconsistent with the NES.

1. The Applicant has submitted an undertaking in the required form dated 8 March 2024, a copy of which is attached to the Agreement. The undertaking deals with the following topics:

·  Part-time safeguards and minimum engagement have been inserted consistent with the Australian Public Service Enterprise Award 2015.

·  For BOOT issues relating to Higher Duties (for APS 1 employees) and Saturday Overtime (for Shiftworkers), the Applicant has implemented a reconciliation process in line with Shop, Distributive and Allied Association v Beechworth Bakery Employee Co Pty Ltd T/A Beechworth Bakery.[1]

1. 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.

1. 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.

1. 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.

1. 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.

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 28 February 2027.

COMMISSIONER

[1] [2017] FWCFB 1664.

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