Invocare Australia Pty Ltd

[2023] FWCA 2736

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Invocare Australia Pty Ltd

(AG2023/2635)

INVOCARE QLD CEMETERIES AND CREMATORIA ENTERPRISE AGREEMENT 2023

Cemetery operations
DEPUTY PRESIDENT MASSON	MELBOURNE, 28 AUGUST 2023

Application for approval of the InvoCare QLD Cemeteries and Crematoria Enterprise Agreement 2023.

An application has been made for approval of an enterprise agreement known as the InvoCare QLD Cemeteries and Crematoria 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 Ltd. 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. Question 18 of the Form F17A provides that the notification time for the Agreement was 6 April 2023.

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 Fair Work 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 July 2023.

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 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 4 September 2023. The nominal expiry date of the Agreement is 28 February 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

Invocare Australia Pty Ltd, an entity engaged in the provision of cemetery services, sought approval for the InvoCare Queensland Cemeteries and Crematoria Enterprise Agreement 2023. The Fair Work Commission was tasked with determining whether the agreement met the statutory requirements for approval under the Fair Work Act 2009. The primary dispute centred on whether the agreement adequately covered the terms and conditions of employment for the affected workers and complied with the legislative provisions for enterprise agreements.

The legal issues before the Commission included whether the agreement was a genuine enterprise agreement, whether it met the minimum coverage requirements, and whether it adhered to the procedural fairness and substantive fairness requirements as outlined in the Fair Work Act. The Commission had to assess if the agreement was made by employers and employees, if it was in writing, and if it provided for the resolution of disputes. Additionally, the Commission considered whether the agreement included minimum terms as stipulated by the Act and if it was procedurally fair, including whether there was adequate consultation and if the agreement was fairly negotiated.

In evaluating these issues, the Fair Work Commission found that the InvoCare Queensland Cemeteries and Crematoria Enterprise Agreement 2023 was a genuine enterprise agreement that covered the necessary minimum terms and conditions. The agreement was determined to have been fairly negotiated and included adequate provisions for dispute resolution. The Commission concluded that the agreement complied with all relevant legislative requirements for approval. Consequently, the application for approval was successful, and the agreement was approved as a certified agreement. The final orders included the certification of the enterprise agreement, effective from the date of the decision.

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