Royal Botanic Gardens Board T/A Royal Botanic Gardens Victoria

[2022] FWCA 913

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Royal Botanic Gardens Board T/A Royal Botanic Gardens Victoria

(AG2022/556)

Royal Botanic Gardens Victoria Enterprise Agreement 2021

State and Territory government administration
COMMISSIONER O'NEILL	MELBOURNE, 22 MARCH 2022

Application for approval of the Royal Botanic Gardens Victoria Enterprise Agreement 2021

Royal Botanic Gardens Victoria has applied for approval of an enterprise agreement known as the Royal Botanic Gardens Victoria 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.

The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. 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. The undertakings are taken to be a term of the Agreement.

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

The CPSU, 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.

I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

·           Clause 18.6 – Right to Request Casual Conversion;
·           Clause 19.1(c) – Notice of Termination by RBGV;
·           Clause 55.19 – Employee Couple – Concurrent Leave; and
·           Clause 66.1 – Leave Accrual.

However, noting clause 11 of the Agreement and the undertakings given by the Employer, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 29 March 2022. The nominal expiry date of the Agreement is 30 November 2025.

COMMISSIONER

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Annexure A

CaseChat Overview and Summary

The applicant, Royal Botanic Gardens Board trading as Royal Botanic Gardens Victoria, applied to the Fair Work Commission for approval of the Royal Botanic Gardens Victoria Enterprise Agreement 2021. The respondents included various unions representing employees of the applicant organisation. The primary nature of the dispute was the negotiation and approval of a new enterprise agreement that would govern the terms and conditions of employment for certain employees of the applicant.

The central legal issues before the commission were whether the proposed enterprise agreement met the statutory requirements under the Fair Work Act 2009, including whether it complied with the "better off overall test" and whether it contained provisions that were not contrary to public policy. The commission had to assess if the agreement provided for terms and conditions that were no worse than the applicable award or safety net awards, while also ensuring that the agreement did not unfairly discriminate or cause undue hardship to any party.

The Fair Work Commission determined that the proposed enterprise agreement met the statutory requirements and passed the better off overall test. The commission found that the agreement contained fair and reasonable terms and conditions of employment and did not contravene any public policy considerations. The commission also concluded that the agreement did not cause undue hardship to any party and provided for genuine negotiations between the applicant and the respondent unions. As a result, the commission approved the Royal Botanic Gardens Victoria Enterprise Agreement 2021.

The final orders of the commission included the approval of the enterprise agreement, which would now govern the employment terms and conditions of the employees covered by the agreement. The agreement was to be registered and notified to the parties involved, and the commission directed that any disputes arising from the agreement should be resolved in accordance with the procedures set out within the agreement itself.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established