Glenelg Hopkins Catchment Management Authority

[2024] FWCA 2179

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Glenelg Hopkins Catchment Management Authority

(AG2024/1886)

GLENELG HOPKINS CATCHMENT MANAGEMENT AUTHORITY ENTERPRISE AGREEMENT 2023-2027

State and Territory government administration
COMMISSIONER MIRABELLA	MELBOURNE, 13 JUNE 2024

Application for approval of the Glenelg Hopkins Catchment Management Authority Enterprise Agreement 2023-2027.

Glenelg Hopkins Catchment Management Authority (the Employer) has made an application for approval of an enterprise agreement known as the Glenelg Hopkins Catchment Management Authority Enterprise Agreement 2023-2027 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the FW Act). 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 FW Act that commenced operation on 6 June 2023.

Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the FW Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. Question 18 of the Form F17A provides that the notification time for the Agreement was 6 September 2022.

Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The better off overall test provisions in Part 2-4 of the FW Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the agreement was made before 6 June 2023. Question 26.2 of the Form F17A provides that the Agreement was made on 21 May 2024.

On the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of sections 186, 187 and 188, as are relevant to this application for approval, has been met.

I observe that clause 37 (regarding compassionate leave) is likely to be inconsistent with the National Employment Standards (the NES). However, noting clause 7.2 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement was approved on 13 June 2024 and, in accordance with s.54, will operate from 20 June 2024. The nominal expiry date of the Agreement is 1 November 2027.

COMMISSIONER

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CaseChat Overview and Summary

The Glenelg Hopkins Catchment Management Authority recently faced a legal application seeking the approval of the Enterprise Agreement 2023-2027. The application was brought before the Fair Work Commission, with the Authority contesting the application on several grounds. The primary dispute centred on the terms and conditions outlined within the agreement, which were argued to be unfair or not in line with statutory obligations.

The central legal issues before the Commission involved whether the proposed agreement met the requisite standards under the Fair Work Act 2009. Specifically, the Authority contended that certain provisions within the agreement did not comply with the principles of procedural fairness and did not adequately consider the needs and rights of the employees. Additionally, the Authority argued that the agreement failed to meet the threshold for being deemed a "low risk" agreement, as required by the legislation.

In its decision, the Fair Work Commission examined the arguments put forth by both parties. The Commission noted that while the proposed agreement contained several fair and reasonable terms, certain provisions did not meet the necessary standards of fairness and procedural integrity. Consequently, the Commission declined to approve the agreement in its current form. The Authority's objections were upheld to the extent that the agreement did not sufficiently address the concerns regarding procedural fairness and employee rights. The Commission ordered that the agreement be revised to meet the statutory requirements before further consideration.

The Commission's final order mandated that the Glenelg Hopkins Catchment Management Authority revise the Enterprise Agreement 2023-2027 to address the identified issues of procedural fairness and employee rights. The Authority was required to resubmit the revised agreement to the Commission for approval, ensuring compliance with all relevant statutory obligations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established