Commonwealth Of Australia Represented By The Office Of The Australian Information Commissioner

[2024] FWCA 986

[2024] FWCA 986

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Commonwealth Of Australia Represented By The Office Of The Australian Information Commissioner

(AG2024/476)

OFFICE OF THE AUSTRALIAN INFORMATION COMMISSIONER ENTERPRISE AGREEMENT 2024-2027

Commonwealth employment
COMMISSIONER PLATT	ADELAIDE, 20 MARCH 2024

Application for approval of the Office of the Australian Information Commissioner Enterprise Agreement 2024-2027

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

1. The matter was allocated to my Chambers on 5 March 2024.

1. On 6 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. There is one National Employment Standard (NES) issue that requires comment:

·  Clause 51 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 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. 

1. With respect to the remaining issues, the Applicant has submitted an undertaking in the required form dated 15 March 2024, a copy of which is attached to this Agreement. The undertaking deals with the following topics:

·  The definition of a shift worker has been inserted.

·  Higher duties allowance will be paid to APS1-APS6 employees after half a day and EL1 employees (or above) after one week, where they occupy a role at a classification level higher than their substantive classification level 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.

·  Part-time employees who work hours in addition to the ordinary hours will be entitled to overtime.

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  that responded, supported 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

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