InvoCare Australia Pty Limited

[2023] FWCA 107

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

InvoCare Australia Pty Limited

(AG2022/5403)

INVOCARE AUSTRALIA PTY LIMITED TASMANIAN FUNERAL OPERATIONS ENTERPRISE AGREEMENT 2022

Funeral directing
COMMISSIONER YILMAZ	MELBOURNE, 12 JANUARY 2023

Application for approval of the Invocare Australia Pty Limited Tasmanian Funeral Operations Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the Invocare Australia Pty Limited Tasmanian Funeral Operations Enterprise Agreement 2022 (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 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 are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

The Agreement lodged contained an error at clause 5.1. The error relates to the former Funeral Industry Award 2010, however I have determined that this should be a reference to the Funeral Industry Award 2020. I am satisfied that this is an obvious error and that the correction should be made and that it is appropriate to do so pursuant to s.218A of the Act.

I observe that clause 26 of the Agreement is likely to be inconsistent with the National Employment Standards (NES). However, noting clause 1.3 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.
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) I note that the Agreement covers the organisation.

The Agreement is approved and in accordance with s.54, will operate from 19 January 2023. The nominal expiry date of the Agreement is 30 June 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The matter before the court was an application by InvoCare Australia Pty Limited to approve the Tasmanian Funeral Operations Enterprise Agreement 2022. This agreement was proposed between the company and its employees, with the aim of regulating employment terms and conditions. The application was heard in the Fair Work Commission, which is responsible for overseeing and approving such agreements under the Fair Work Act 2009.

The central legal issue that the Commission had to address was whether the proposed enterprise agreement met the requirements for approval under the Fair Work Act. Specifically, the Commission had to determine if the agreement contained the necessary provisions to ensure that it was in the best interests of the employees and the company. This involved examining the agreement to ensure it complied with the procedural fairness and substantive fairness criteria set out in the Act. The Commission also had to consider whether the agreement provided for appropriate protections for employees, including provisions for minimum wages, hours of work, and other employment conditions.

In reaching its decision, the Commission considered various aspects of the proposed agreement. It examined the negotiation process to ensure that it was conducted in good faith and that the agreement reflected the outcome of genuine negotiations between the parties. The Commission also assessed the agreement's provisions to determine if they were fair and reasonable, taking into account the interests of both employees and the employer. The Commission concluded that the proposed agreement met the necessary criteria for approval and, therefore, granted the application for approval of the Tasmanian Funeral Operations Enterprise Agreement 2022.

The Fair Work Commission approved the application, thereby confirming the validity of the Tasmanian Funeral Operations Enterprise Agreement 2022. This decision ensures that the agreement will govern the employment terms and conditions between InvoCare Australia Pty Limited and its employees in Tasmania, subject to the provisions and protections outlined in the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established