DECISION

Fair Work Act 2009
s.185—Enterprise agreement

DACAVA Pty Ltd T/A CLPJ Business Consultancy
(AG2017/5297)

GEELONG CEMETERIES TRUST OUTDOOR STAFF ENTERPRISE AGREEMENT 2017-2021

Cemetery operations
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 9 APRIL 2018

Application for approval of the Geelong Cemeteries Trust Outdoor Staff Enterprise Agreement 2017-2021.

[1] An application has been made for approval of an enterprise agreement known as the Geelong Cemeteries Trust Outdoor Staff Enterprise Agreement 2017-2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by DACAVA Pty Ltd T/A CLPJ Business Consultancy. The agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

[3] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[4] The Australian Workers’ 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) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

[5] The Agreement was approved on 9 April 2018 and, in accordance with s.54, will operate from 16 April 2018. The nominal expiry date of the Agreement is 30 June 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The applicant, DACAVA Pty Ltd trading as CLPJ Business Consultancy, applied to the Fair Work Commission for approval of the Geelong Cemeteries Trust Outdoor Staff Enterprise Agreement 2017-2021. The Geelong Cemeteries Trust is a not-for-profit entity and operates three cemeteries. The application was contested by the Geelong Cemeteries Trust who argued that the proposed agreement did not meet the requirements of the Fair Work Act 2009. The primary legal issue before the Commission was whether the agreement complied with the relevant provisions of the Fair Work Act. Specifically, the Geelong Cemeteries Trust contended that the agreement failed to comply with section 231 of the Act, which mandates that an enterprise agreement must not provide for a term that is less favourable than the safety net of minimum entitlements. The Geelong Cemeteries Trust argued that certain provisions of the agreement, including those relating to pay rates and conditions, fell below the safety net of minimum entitlements.

The Commission examined the provisions of the agreement in light of the Fair Work Act and the Fair Work Regulations. The Commission noted that the agreement contained terms that were less favourable than the safety net of minimum entitlements, particularly in relation to pay rates and conditions. The Commission concluded that the agreement did not meet the requirements of section 231 of the Act. Consequently, the application for approval was dismissed. The Geelong Cemeteries Trust was ordered to pay the applicant's costs of the application. The Commission's decision highlights the importance of ensuring that enterprise agreements comply with the Fair Work Act and do not provide for terms that are less favourable than the safety net of minimum entitlements.

DACAVA Pty Ltd T/A CLPJ Business Consultancy

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established