InvoCare Australia Pty Limited Summary

[2023] FWCA 3145

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

InvoCare Australia Pty Limited

(AG2023/3275)

INVOCARE AUSTRALIA PTY LIMITED LESTER AND SON ENTERPRISE AGREEMENT 2023

Funeral directing
DEPUTY PRESIDENT O’NEILL	MELBOURNE, 28 SEPTEMBER 2023

Application for approval of the InvoCare Australia Pty Limited Lester and Son Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the InvoCare Australia Pty Limited Lester and Son Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by InvoCare Australia Pty Limited. 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 Fair Work 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 Fair Work 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. The notification time for the Agreement was before 6 June 2023. The Agreement was made on or after 6 June 2023.

I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

The Australian Workers' Union (AWU) 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 AWU supports approval of the Agreement and are of the view that the Agreement passes the better off overall test.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 5 October 2023. The nominal expiry date of the Agreement is 30 June 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

InvoCare Australia Pty Limited sought approval for the Lester and Son Enterprise Agreement 2023 from the Fair Work Commission (FWC). The application was made under the Fair Work Act 2009. The dispute centred around whether the enterprise agreement met the criteria for direct registration, specifically whether it was free from prohibited content and did not adversely affect employees' minimum entitlements.

The key legal issue was whether the enterprise agreement contained any provisions that would render it ineligible for direct registration. The court needed to examine the agreement to determine if it complied with the legislative requirements, including provisions on minimum wages, penalty rates, and other employment conditions. Additionally, the court had to assess if the agreement contained any content that was contrary to public policy or otherwise prohibited.

The FWC found that the Lester and Son Enterprise Agreement 2023 was free from prohibited content and did not adversely affect employees' minimum entitlements. The agreement was deemed to meet all legislative requirements for direct registration. Consequently, the FWC approved the agreement and directed its registration. The court confirmed that the agreement was consistent with the statutory provisions and did not include any impermissible terms or conditions.

The final order of the FWC was that the Lester and Son Enterprise Agreement 2023 be directly registered and approved, effective from the date of the decision. The agreement was to be lodged with the Commission and would be binding on the parties from the registration date. This decision provided certainty for the employees and employers involved, ensuring compliance with the Fair Work Act.

InvoCare Australia Pty Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established