Remembrance Parks Central Victoria Summary

[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

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.

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.

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.

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.

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.
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.

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.

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.

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.

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

Printed by authority of the Commonwealth Government Printer

Annexure A

The matter before the Fair Work Commission involved an application by the employer, Remembrance Parks Central Victoria, to have certain terms of the Enterprise Agreement declared void. The dispute centred around the employer's contention that certain provisions in the agreement were inconsistent with the employer's obligations under the Fair Work Act 2009 (Cth) and were thus unenforceable. The employer argued that specific provisions related to the use of subcontractors and the requirement for advanced notice of shift changes were contrary to its operational needs and were unenforceable as they imposed undue restrictions on its business operations.

The central legal issues the Commission had to address were whether the provisions in question were inconsistent with the Fair Work Act and, if so, whether they were void to the extent of the inconsistency. The Commission had to carefully consider the balance between the rights of employees to fair working conditions and the employer's operational flexibility. The employer's argument focused on the potential operational inflexibility and increased costs that the provisions might impose, while the employee representative argued that the provisions were necessary to protect the workforce's rights and ensure fair and reasonable terms of employment.

The Commission found that the provisions in question were indeed inconsistent with the Fair Work Act, as they imposed restrictions on the employer's ability to manage its business operations in a manner consistent with good faith and reasonable commercial practice. The Commission held that these provisions were void to the extent of the inconsistency, as they were not capable of being given effect in a manner that did not undermine the employer's operational flexibility and commercial interests. The decision underscored the importance of ensuring that enterprise agreements strike a fair balance between the rights of employers and employees, and that they do not impose undue restrictions on legitimate business operations.

The Commission's decision resulted in the voiding of the specific provisions regarding the use of subcontractors and the advanced notice of shift changes. The remaining terms of the Enterprise Agreement were left intact, as they did not suffer from the same inconsistency issues. This decision provided clarity on the enforceability of certain terms in enterprise agreements, reinforcing the need for agreements to be fair and reasonable while also accommodating legitimate business needs.

Remembrance Parks Central Victoria

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established