InvoCare Australia Pty Limited

[2024] FWCA 3224

[2024] FWCA 3224

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

InvoCare Australia Pty Limited

(AG2024/3137)

INVOCARE NSW CEMETERIES AND CREMATORIA ENTERPRISE AGREEMENT 2024

Cemetery operations
COMMISSIONER PERICA	MELBOURNE, 11 SEPTEMBER 2024

InvoCare NSW Cemeteries and Crematoria Enterprise Agreement 2024

1. An application has been made for approval of an enterprise agreement known as the InvoCare NSW Cemeteries and Crematoria Enterprise Agreement 2024 (the Agreement). The application is made under section 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

1. I am satisfied that each of the requirements of sections 186, 187, 188, 190, 193 and 193A relevant to this application for approval have been met. The Agreement does not cover all the employees of the employer, however, taking into account the factors in sections 186(3) and (3A), I am satisfied that the group of employees was fairly chosen.

1. Section 205A(2) has the effect that if an Agreement contains a delegates’ rights term that is inferior to the delegates’ rights term in the relevant Modern Award(s), the most favourable term of the relevant Modern Award(s) is “taken to be a term of the Agreement” under s 205A(2)(b). The inferior delegates’ rights term in the Agreement is rendered a nullity and of “no effect” under s 205A(2)(a).

1. There are two underpinning awards, the Cemetery Industry Award 2020 and the Clerks – Private Sector Award 2020 (collectively the Awards). The delegates’ rights terms are at clauses 24A and 37A respectively. There is no material difference between those two clauses.

1. Clause 44 of the Agreement provides for a delegates’ rights term that is less favourable than the workplace delegates’ rights term in the Awards. Pursuant to s.205A(2) of the FW Act, clause 24A of the Cemetery Industry Award 2020 is taken to be a term of the Agreement.

1. The Australian Workers’ Union being a bargaining representative for the Agreement has given notice under section 183 of the Act that it wants the Agreement to cover it. I therefore note the Agreement covers the organisation under section 201(2) of the Act.

1. The Agreement is approved today 11 September 2024. It will operate from 18 September 2024 as required by section 54 of the Act. The nominal expiry date is 31 March 2028.

COMMISSIONER

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