G4S Custodial Services Pty Ltd
[2023] FWCA 1718
•14 JUNE 2023
| [2023] FWCA 1718 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
G4S Custodial Services Pty Ltd
(AG2023/1459)
UWU AND G4S (COUNTY COURT OF VICTORIA) SAFEGUARD AGREEMENT 2023
| Corrections and detentions | |
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 14 JUNE 2023 |
Application for approval of the UWU and G4S (County Court of Victoria) Safeguard Agreement 2023
An application has been made for approval of an enterprise agreement known as the UWU and G4S (County Court of Victoria) Safeguard Agreement 2023 (Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (Act). It has been made by G4S Custodial Services Pty Ltd (Employer). The Agreement is a single-enterprise agreement.
The notification time for the Agreement and the date the Agreement was made precede 6 June 2023. Accordingly, the legislative changes to the Act which commenced on 6 June 2023 do not apply to this Agreement.[1]
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. The undertakings are taken to be a term of the Agreement.
Subject to the undertakings referred to above, 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.
I observe that the following clause is likely to be inconsistent with the National Employment Standards (NES). However, noting undertaking [1], which is taken to be a term of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES:
(a) Clause 29 provides for compassionate leave, however it is silent on the entitlement to leave when the employee, their spouse, or de facto partner has a miscarriage or gives birth to a stillborn child, contrary to s 104(1)(c) of the Act.
(b) Clause 25.4.1 states the Employer and employees may agree to substitute another day for any of the prescribed public holidays, and for this purpose the consent of the majority of affected employees will constitute agreement. This appears to be contrary to s 115(3) of the Act which provides for substitution by agreement between the individual employee and the Employer only.
(c) Clause 9.1 states that an employee will be taken to have abandoned their employment if absent for 3 consecutive shifts without approval, and that ‘abandonment in this manner constitutes termination of employment at the initiative of the employee.’ The clause is silent on when termination will apply from and as such this may be inconsistent with s 117 of the Act.[2]
The United 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) I note that the Agreement covers the organisation.
The Agreement is approved and, in accordance with s 54 of the Act, will operate from 21 June 2023. The nominal expiry date of the Agreement is 30 June 2026.
DEPUTY PRESIDENT
Annexure A
[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Amending Act) commenced operation with respect to the genuine agreement provisions and the better off overall test provisions of the Act on 6 June 2023. However, Division 11 of Part 26 of the Amending Act provides that Part 2‑4 of the Act continues to apply, as if the amendments had not been made, in relation to any proposed enterprise agreement for which the notification time occurs before 6 June 2023. Further, Division 12 of Part 26 of the Amending Act provides that the amendments to the better off overall test apply in relation to enterprise agreements made on and after 6 June 2023
[2] Bienias v Iplex Pipelines Australia Pty Limited[2017] FWCFB 38 at [58]
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