Remembrance Parks Central Victoria

[2024] FWCA 1718

[2024] FWCA 1718

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Remembrance Parks Central Victoria

(AG2024/1369)

REMEMBRANCE PARKS CENTRAL VICTORIA ENTERPRISE AGREEMENT 2024-2028

Cemetery operations
COMMISSIONER PERICA	MELBOURNE, 10 MAY 2024

Remembrance Parks Central Victoria Enterprise Agreement 2024-2028

1. An application has been made for approval of an enterprise agreement known as the Remembrance Parks Central Victoria Enterprise Agreement 2024-2028 (the Agreement). The application is made under section 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

1. The Fair Work Legislation Amendment (Secure Jobs Better Pay) Act 2022 (Cth) (the Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023.

1. Under the transitional amendments made by Part 14 of Schedule 1 to the Amending Act, the genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for this Agreement was 20 July 2023. It follows the Amending Act genuine agreement provisions apply.

1. Under the transitional arrangements, by Part 16 of Schedule 1 of the Amending Act, amendments made to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. This Agreement was made on 15 April 2024. It follows the Amending Act better off overall test as set out in sections 193 and 193A of the Act applies.

1. The Employer has provided written undertakings. A copy of these undertakings is attached in Annexure A. I am satisfied 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. I therefore note the undertakings are taken to be terms of the Agreement under section 201(3) of the Act.

2. Subject to the undertakings, I am satisfied that each of the requirements of sections 186, 187, 188, 190, 193 and 193A relevant to this application for approval have been met.

1. This matter was listed for a mention hearing on 9 May 2024 to clarify issues surrounding application of the better off overall test (BOOT) to trainees and a deduction clause. In attendance were Ms. Lauretta Stace, CEO of the Employer, and Mr. Patrick Reilly and Mr. Mick Derrick of the Australian Workers’ Union (AWU). After receiving written submissions and an amended undertaking from the Employer and hearing submissions from Ms. Stace, I am satisfied that, in respect to trainees, the Agreement passes the BOOT and the deduction clause is compliant with s 324 of the Act. In its Form F18, the AWU confirms its support of approval of the Agreement.

1. It should be noted that in an earlier iteration of the undertakings the Applicant had given an undertaking in relation to the payment of wages of trainees. At the mention, the AWU expressed a view the terms of that proposed undertaking may not be consistent with the plain words of the Agreement itself. On that basis, the Applicant, as a mark of goodwill, agreed to withdraw that proposed undertaking. The undertakings which are attached to this Agreement exclude that undertaking. As I have indicated above the submissions the Applicant has made in relation to the conditions of trainees under the Agreement satisfy me that Agreement passes the BOOT for trainees covered by the Agreement.

1. The AWU being a bargaining representative for the Agreement has given notice under section 183 of the Act that it wants the Agreement to cover it. I therefore note the Agreement covers the organisation under section 201(2) of the Act.

1. The Agreement is approved today 10 May 2024. It will operate from 17 May 2024 as required by section 54 of the Act. The nominal expiry date is 10 May 2028.

COMMISSIONER

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Annexure A