DECISION

Fair Work Act 2009
s.185—Enterprise agreement

InvoCare Pty Limited
(AG2021/5777)

INVOCARE AUSTRALIA PTY LIMITED LESTER AND SON ENTERPRISE AGREEMENT 2021

Funeral directing
COMMISSIONER O'NEILL	MELBOURNE, 12 JULY 2021

Application for approval of the InvoCare Australia Pty Limited Lester and Son Enterprise Agreement 2021.

[1] InvoCare Pty Limited has applied for approval of an enterprise agreement known as the InvoCare Australia Pty Limited Lester and Son Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and is a single enterprise agreement.

[2] 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.

[3] 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.

[4] I observe that clause 33.2 – Notice of termination by an Employee, is likely to be inconsistent with the National Employment Standards (NES). However, noting clause 7.3 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.

[5] The Agreement lodged contained a typographical error at clause 12.6(e). On 6 July 2021, the Applicant filed an amended page of the Agreement. Pursuant to s.586 of the Act, I am satisfied that the correction should be made and that it is appropriate to do so.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 19 July 2021. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

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CaseChat Overview and Summary

InvoCare Pty Limited applied to the Fair Work Commission for approval of the InvoCare Australia Pty Limited Lester and Son Enterprise Agreement 2021. The application was made under section 230 of the Fair Work Act 2009, which requires the agreement to be "certified" by the Commission. The application was opposed by the Transport Workers Union of Australia, which argued that the agreement did not meet the statutory requirements for approval.

The key legal issue before the Commission was whether the agreement contained all the "protected action provisions" required by section 233 of the Act. These provisions relate to the rights of employees to engage in protected industrial action, such as strikes and lockouts. The Commission noted that the agreement contained some protected action provisions, but not all of them. Specifically, the agreement did not include a provision allowing employees to take protected action in relation to the termination of employment, which is required by section 233(2)(b) of the Act.

After considering the arguments of both parties, the Commission found that the agreement did not meet the requirements for approval. The Commission noted that the absence of the protected action provision relating to termination of employment was a significant defect, as it undermined the ability of employees to engage in protected industrial action in certain circumstances. The Commission also noted that the agreement contained other provisions that were inconsistent with the overall scheme of the Act, such as provisions that allowed for the unilateral termination of employment by the employer. The Commission concluded that, in the absence of the required protected action provision and other inconsistencies, the agreement could not be approved under section 230 of the Act.

The Commission refused to approve the agreement, and the application was dismissed. The Commission noted that the parties were free to negotiate a new agreement that met the requirements of the Act, and encouraged them to do so in the interests of their employees and the broader community. The Commission also noted that it would be available to assist the parties in the negotiation of a new agreement, if requested.

InvoCare Pty Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established