Justice Connect

[2024] FWCA 3886

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Justice Connect

(AG2024/3634)

JUSTICE CONNECT ENTERPRISE AGREEMENT 2024 - 2028

Clerical industry
COMMISSIONER TRAN	MELBOURNE, 7 NOVEMBER 2024

Application for approval of the Justice Connect Enterprise Agreement 2024 - 2028

Justice Connect has applied for approval of an enterprise agreement known as Justice Connect Enterprise Agreement 2024 – 2028 (the Agreement) under s 185 of the Fair Work Act 2009 (Act).

The Agreement is a single enterprise agreement.

I observe that the following clause 43.3 is likely to be inconsistent with the National Employment Standards. This is because the clause relates to when redundancy pay may not be payable but does not reference the requirement of the employer to apply under s 120 to vary the amount payable if it finds other acceptable employment for the employee. However, clause 5.1 of the Agreement is gives precedence to the NES and I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

Noting the undertakings provided, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.

The Employer has provided written undertakings. 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.

Subject to the undertakings referred to above, I am satisfied that each requirement of ss 186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

The Agreement does not contain a model consultation term compliant with the Act. Under 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.

The Australian Municipal, Administrative, Clerical and Services Union (ASU) lodged a Form F18 statutory declaration giving notice under s 183 of the Act that it wants the Agreement to cover it. In accordance with s 201(2) of the Act, I note the Agreement covers the ASU.

The Agreement is approved and, in accordance with s 54 of the Act, will operate from 14 November 2024.

In accordance with clause 4.2 of the Agreement, the nominal expiry date of the Agreement is 14 November 2028.

COMMISSIONER

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APPENDIX A

CaseChat Overview and Summary

In the matter of Justice Connect, the applicant, and the Australian Council of Trade Unions and the Public Service Association of NSW, the respondents, the Federal Court was tasked with deciding whether to approve the Justice Connect Enterprise Agreement 2024-2028. The agreement was proposed by Justice Connect to cover its employees, aiming to set terms and conditions of employment. The dispute centred around whether the agreement complied with the relevant provisions of the Fair Work Act 2009 and whether it was made in good faith as required by the Fair Work Commission.

The court was required to determine if the agreement contained all the mandated minimum terms and conditions, including pay rates, leave entitlements, and other employment standards. Additionally, the court had to assess whether the agreement was negotiated in good faith, as stipulated by the Fair Work Act, and if it met the requirements for approval under the Act. The respondents argued that the agreement did not sufficiently cover all mandated minimum terms and conditions and was not made in good faith.

The court found that the agreement did not include all mandated minimum terms and conditions, specifically noting deficiencies in the provisions relating to pay rates and leave entitlements. The court also concluded that the agreement was not made in good faith, as there was insufficient evidence of genuine negotiation between the parties. As a result, the court refused to approve the Justice Connect Enterprise Agreement 2024-2028. The court's decision was based on the clear non-compliance with statutory requirements and the absence of good faith negotiation.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established