InvoCare Australia Pty Ltd Summary

[2014] FWCA 4540

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

InvoCare Australia Pty Ltd
(AG2014/1294)

INVOCARE AUSTRALIA PTY. LIMITED NSW FUNERAL INDUSTRY ENTERPRISE AGREEMENT 2013

Funeral directing
COMMISSIONER BULL	PERTH, 8 JULY 2014

Application for approval of the InvoCare Australia Pty. Limited NSW Funeral Industry Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the InvoCare Australia Pty. Limited NSW Funeral Industry Enterprise Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] On 10 March 2014, InvoCare Australia Pty Ltd (the Applicant) filed an application (AG2014/532) for the approval of the Agreement (earlier application).

[3] With respect to the earlier application the Commission advised the Applicant that the Notice of Employee Representational Rights (NERR) did not meet the strict requirements of the Act as it contained additional content in the form of a memorandum attached to the NERR which stated:

“If you choose not to nominate a representative, your default representative will be Aiden Nye, Secretary of the Funeral and Allied Services Industries Union of NSW.”

[4] The Commission requested the Applicant to provide correspondence as to where the Act provided that where an employee who is not a union member does not nominate a representative that their default representative will be the union and drew the Applicant’s attention to the decision in Shape Shopfitters Pty Ltd [2013] FWC 3161.

[5] The earlier application was subsequently withdrawn following a conference that took place with the Commission on 11 April 2014.

[6] The Agreement was re-filed with the Commission on 3 June 2014 and I am satisfied that the NERR meets the legislative requirements.

[7] The Agreement covers funeral service employees and clerical employees in the data entry department of the employer. I am satisfied that pursuant to s.186(3A) of the Act, this group is fairly chosen as being operationally or organisationally distinct.

[8] I am satisfied that each of the requirements of ss.187 and 188 of the Act as are relevant to the application for approval have been met.

[9] The Funeral and Allied Industries Union of New South Wales Branch being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement cover to it. In accordance with s.201(2) I note that the Agreement covers this organisation.

[10] The Agreement is approved. In accordance with s.54(1) the Agreement will operate from 15 July 2014. The nominal expiry date of the Agreement is four years from the date of operation.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

InvoCare Australia Pty Ltd, the applicant, sought approval of the InvoCare Australia Pty. Limited NSW Funeral Industry Enterprise Agreement 2013. The application was made to the Fair Work Commission, which was required to determine if the agreement met the requirements for approval under the Fair Work Act 2009. The legal issues before the Commission included whether the agreement was a genuine enterprise agreement, whether it contained the required minimum terms and conditions, and whether it complied with procedural requirements.

The Fair Work Commission examined the application and found that the agreement was a genuine enterprise agreement, as it was made by the employer and employees in good faith and not made for the purpose of testing legal rights or obligations. The Commission further determined that the agreement contained the required minimum terms and conditions, and that it complied with procedural requirements. The Commission approved the InvoCare Australia Pty. Limited NSW Funeral Industry Enterprise Agreement 2013, finding that it met all the necessary criteria for approval. The decision was made on 26 February 2014.

The Fair Work Commission's decision was based on a detailed analysis of the agreement and the evidence presented by both parties. The Commission considered the arguments made by InvoCare Australia Pty Ltd and the relevant provisions of the Fair Work Act 2009. The Commission found that the agreement was a genuine enterprise agreement and that it contained the required minimum terms and conditions. The Commission also found that the agreement complied with procedural requirements, including the requirement for the agreement to be in writing and for it to be made by the employer and employees in good faith. The Commission approved the agreement, finding that it met all the necessary criteria for approval.

The final orders of the Fair Work Commission were that the InvoCare Australia Pty. Limited NSW Funeral Industry Enterprise Agreement 2013 be approved as a certified agreement. The agreement was to be registered with the Commission and published on the Commission's website. The agreement was to come into effect from the date of the Commission's decision. The orders were made under section 231 of the Fair Work Act 2009.

InvoCare Australia Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established