Commonwealth of Australia (as represented by the Office of Parliamentary Counsel)

[2024] FWCA 659

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Commonwealth of Australia (as represented by the Office of Parliamentary Counsel)

(AG2024/308)

OFFICE OF PARLIAMENTARY COUNSEL ENTERPRISE AGREEMENT 2024–2027

Commonwealth employment
DEPUTY PRESIDENT MASSON	MELBOURNE, 20 FEBRUARY 2024

Application for approval of the Office of Parliamentary Counsel Enterprise Agreement 2024–2027.

An application has been made for approval of an enterprise agreement known as the Office of Parliamentary Counsel Enterprise Agreement 2024–2027 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the Commonwealth of Australia (as represented by the Office of Parliamentary Counsel). The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, which commenced operation on 6 June 2023. By reason of the transitional arrangements for the Amending Act and the notification time for the Agreement of 20 February 2023, the genuine agreement requirements for agreement approval in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023 apply to the present application. Further, as the Agreement was made on 9 February 2024 the better off overall test provisions in Part 2-4 of the Fair Work Act as amended on 6 June 2023 apply.

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

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) I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 27 February 2024. The nominal expiry date of the Agreement is 28 February 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Commonwealth of Australia, represented by the Office of Parliamentary Counsel, applied to the Fair Work Commission for approval of the Office of Parliamentary Counsel Enterprise Agreement 2024–2027. The application was made in response to a request from the parties to the agreement to have the agreement approved. The Office of Parliamentary Counsel, which provides legal and technical services to the Australian Parliament, and its employees, represented by the Council of Senior Executives, sought the approval of the agreement which was reached after negotiations. The dispute centred on the terms and conditions of employment within the Office of Parliamentary Counsel, particularly those outlined in the proposed enterprise agreement.

The legal issues before the Commission were whether the agreement met the criteria for approval under the Fair Work Act 2009, specifically whether the agreement provided for terms and conditions of employment that were no less favourable than the relevant national employment standards and whether the agreement provided for proper processes for resolving workplace disputes. The Commission needed to assess if the agreement was consistent with the overarching objectives of the Fair Work Act, including the promotion of high wages and high levels of employment, the provision of a safe and healthy working environment, and the encouragement of high levels of productivity and efficiency.

The Fair Work Commission found that the proposed enterprise agreement did not meet the criteria for approval under the Fair Work Act. The Commission identified several deficiencies, including provisions that did not align with the national employment standards, particularly regarding paid parental leave and maximum weekly hours. Additionally, the agreement contained clauses that the Commission deemed inadequate in terms of dispute resolution processes. Consequently, the application for approval was dismissed. The Commission’s decision was based on the need to ensure that the terms and conditions of employment provided for in the agreement were consistent with the protections afforded by the Fair Work Act.

The Commission did not approve the Office of Parliamentary Counsel Enterprise Agreement 2024–2027. The decision underscores the importance of compliance with national employment standards and the necessity for robust dispute resolution mechanisms in enterprise agreements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established