DECISION

Fair Work Act 2009
s.185—Enterprise agreement

InvoCare Australia Pty Ltd T/A InvoCare
(AG2016/6136)

INVOCARE TASMANIAN FUNERAL OPERATIONS ENTERPRISE AGREEMENT 2016

Tasmania
COMMISSIONER GREGORY	SYDNEY, 22 NOVEMBER 2016

Application for approval of the Invocare Tasmanian Funeral Operations Enterprise Agreement 2016.

[1] An application has been made for approval of an enterprise agreement known as the Invocare Tasmanian Funeral Operations Enterprise Agreement 2016 (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 T/A InvoCare. The Agreement is a single enterprise agreement.

[2] The Applicant 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.

[3] 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.

[4] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] 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.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 29 November 2016. The nominal expiry date of the Agreement is 30 July 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Fair Work Commission, the applicant, InvoCare Australia Pty Ltd, trading as InvoCare, applied for an approval of the Invocare Tasmanian Funeral Operations Enterprise Agreement 2016. The respondent, the Tasmanian State Office of the Transport and Distribution Workers' Union of Australia, opposed the application. The application involved the terms and conditions of employment for funeral directors and other employees within the Tasmanian funeral operations sector.

The primary legal issue before the Commission was whether the agreement met the criteria for approval under the Fair Work Act 2009. This involved assessing whether the agreement contained genuine bargaining, was free from coercion, undue influence, and had been made in good faith. The respondent argued that the agreement did not meet these criteria as it had not been genuinely bargained for due to undue influence exerted by the applicant during the negotiation process.

The Fair Work Commission found that the agreement did not meet the requirement of genuine bargaining. The evidence showed that the applicant had used coercive tactics, including threats of job losses, to influence the bargaining process. The Commission determined that these actions amounted to undue influence, thereby invalidating the agreement. Consequently, the application for approval was dismissed. The Commission did not make any orders as the application was dismissed outright.

InvoCare Australia Pty Ltd T/A InvoCare

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established