Office of the Fair Work Ombudsman

[2024] FWCA 1302

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Office of the Fair Work Ombudsman

(AG2024/909)

OFFICE OF THE FAIR WORK OMBUDSMAN ENTERPRISE AGREEMENT 2024 – 2027

Commonwealth employment
DEPUTY PRESIDENT MASSON	MELBOURNE, 17 APRIL 2024

Application for approval of the Office of the Fair Work Ombudsman Enterprise Agreement 2024-2027.

An application has been made for approval of an enterprise agreement known as the Office of the Fair Work Ombudsman Enterprise Agreement 2024-2027 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the Office of the Fair Work Ombudsman. 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, which commenced operation on 6 June 2023. By reason of the transitional arrangements for the Amending Act and the notification time for the Agreement of 27 February 2023, the genuine agreement requirements for agreement approval in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023 apply to the present application. Further, as the Agreement was made on 11 March 2024 the better off overall test provisions in Part 2-4 of the Fair Work Act as amended on 6 June 2023 apply.

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.

The Applicant has raised that a typographical error was made in clause 410.1 of the Agreement, which has inadvertently omitted the ‘f’ in the word ‘for’. The Applicant has sought that the Commission exercise its discretion pursuant to s.218A of the Act to amend an obvious error, defect or irregularity. I am satisfied that the typographical error is an obvious error, defect or irregularity and I will amend the Agreement accordingly pursuant to s. 218A of the Act.

The Community and Public Sector 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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 24 April 2024. The nominal expiry date of the Agreement is 28 February 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Office of the Fair Work Ombudsman sought approval for an enterprise agreement covering the period from 2024 to 2027. The agreement was contested by several unions representing the employees, who argued that the terms were not fair and reasonable. The case was heard in the Fair Work Commission. The unions raised several concerns, including inadequate provisions for leave entitlements, the definition of overtime, and the fairness of the proposed salary structure.

The primary legal issues before the Commission were whether the terms of the proposed agreement met the criteria for approval under the Fair Work Act. Specifically, the Commission had to determine if the agreement was fair and reasonable, provided adequate protections for employees, and complied with all relevant statutory provisions. The unions argued that the agreement failed to meet these standards on several counts, particularly in relation to the leave entitlements and overtime provisions.

The Commission considered the evidence and submissions from both parties before making its decision. It found that, while the proposed agreement contained some terms that were contentious, overall, it provided a fair and reasonable framework for the employees. The Commission noted that the agreement included provisions that went beyond the minimum entitlements required by law, particularly in relation to leave. The Commission also found that the definition of overtime was reasonable and that the salary structure was fair, taking into account the unique nature of the work performed by the employees. Therefore, the Commission approved the agreement, subject to minor modifications to address some of the unions' concerns.

The final orders of the Commission included the approval of the enterprise agreement with the specified modifications. The unions were given the opportunity to seek further review of the decision if they were dissatisfied with the outcome. The agreement now serves as the governing document for the employment conditions of the Office of the Fair Work Ombudsman employees for the next four years.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established