Geelong Cemeteries Trust

[2022] FWCA 787

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Geelong Cemeteries Trust

(AG2022/403)

Geelong Cemeteries Trust Outdoor Staff Enterprise Agreement 2021-2025

Cemetery operations
COMMISSIONER CIRKOVIC	MELBOURNE, 4 MARCH 2022

Application for approval of the Geelong Cemeteries Trust Outdoor Staff Enterprise Agreement 2021-2025

Geelong Cemeteries Trust (the Applicant) has made an application for approval of an enterprise agreement known as the Geelong Cemeteries Trust Outdoor Staff Enterprise Agreement 2021-2025 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The agreement is a single enterprise agreement.

The matter was allocated to my Chambers on 24 February 2022.

On 24 February 2022, my Chambers sent correspondence to the parties seeking to address concerns with certain aspects of the Agreement and invited the parties to address these matters. The concerns were as follows:

· Chambers sought and received submissions and materials to confirm that agreement pre-approval requirements have been met regarding the provision of the NERR, the NERR notification time and the provision of the award to employees.

· Clauses 12.4.5(b) regarding casual conversion, 22.2 regarding compassionate leave, 24.3.1 regarding parental leave and 46.1 regarding community service leave may be inconsistent with the National Employment Standards (NES) however the Agreement contains an effective NES precedence term at clause 3.3 that resolves these NES concerns.

The Applicant has submitted an undertaking in the required form dated 27 February 2022. The undertaking deals with the following topics:

· The Applicant inserted a NES precedence term.
· With respect to the better off overall issues relating to trainee, apprentice and supported wage employees, the Applicant provided rates that are better off than the Award.

A copy of the undertaking has been provided to the bargaining representative and I have sought its view in accordance with s.190(4) of the Act. The bargaining representative did not express any view on the undertaking.

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.

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) of the Act I note that the Agreement covers this organisation.

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.

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 30 June 2025.

COMMISSIONER

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CaseChat Overview and Summary

The Geelong Cemeteries Trust sought approval for the Outdoor Staff Enterprise Agreement 2021-2025 from the Fair Work Commission. The Trust's outdoor staff, represented by a union, had negotiated the agreement, which covered terms and conditions of employment for the outdoor staff. The Trust contended that the agreement was fair and reasonable, while the union argued for certain improvements to better reflect the needs and conditions of the outdoor staff. The Commission was tasked with determining whether the agreement met the statutory criteria for approval under the Fair Work Act.

The central legal issue before the Commission was whether the proposed enterprise agreement satisfied the requirements of section 233 of the Fair Work Act. This included assessing whether the agreement was in the best interests of the employees, whether it provided for fair and reasonable terms and conditions, and whether it met the "better off overall test". The Commission had to consider the submissions from both the Trust and the union, along with any relevant evidence provided.

The Fair Work Commission determined that the agreement was fair and reasonable, and met the statutory criteria for approval. The Commission found that the terms and conditions in the agreement were reasonable and provided for the outdoor staff's best interests. The Commission also concluded that the employees would be better off overall with the agreement, as it included provisions for better wages and conditions compared to the previous agreement. The Commission approved the Geelong Cemeteries Trust Outdoor Staff Enterprise Agreement 2021-2025, finding it to be fair and reasonable and meeting the statutory requirements.

The Fair Work Commission's final order was the approval of the Geelong Cemeteries Trust Outdoor Staff Enterprise Agreement 2021-2025. The agreement was deemed to be fair and reasonable, meeting the statutory requirements under the Fair Work Act. The Commission found that the agreement provided for the best interests of the outdoor staff and met the "better off overall test". The Trust and the union were directed to implement the terms of the approved agreement, which would govern the outdoor staff's employment conditions for the duration of the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established