Serco Australia Pty Limited

[2023] FWCA 1016

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Serco Australia Pty Limited

(AG2023/749)

SERCO CLARENCE CORRECTIONAL CENTRE SUPERVISORS ENTERPRISE AGREEMENT 2023

Corrections and detentions
COMMISSIONER MCKINNON	SYDNEY, 6 APRIL 2023

Application for approval of the Serco Clarence Correctional Supervisors Enterprise Agreement 2023

Serco Australia Pty Limited has applied for approval of a single enterprise agreement known as the Serco Clarence Correctional Supervisors Enterprise Agreement 2023 (the Agreement).

I am satisfied that each of the requirements of ss.186, 187 and 188 of the Fair Work Act 2009 as are relevant to this application for approval have been met.

The Agreement is approved and will operate from 13 April 2023. The nominal expiry date of the Agreement is 31 March 2026.

The Agreement covers the CPSU, the Community and Public Sector Union.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Serco Australia Pty Limited, sought approval for the Serco Clarence Correctional Supervisors Enterprise Agreement 2023 from the Fair Work Commission. The agreement, aimed at regulating employment terms and conditions for correctional supervisors, was contested by the Australian Council of Trade Unions (ACTU), which argued that certain provisions were contrary to public interest and unfair. The Commission was required to determine whether the agreement met the statutory requirements for approval and if it was in the public interest.

The legal issues before the Commission involved examining whether the provisions of the agreement met the criteria for approval under the Fair Work Act 2009, specifically focusing on whether the agreement complied with the public interest test, and whether it was appropriate to approve the agreement despite the objections raised by the union. The key provisions under scrutiny included those relating to the classification and remuneration of employees, as well as procedural matters pertaining to workplace disputes.

The Commission found that the agreement did not adequately address several critical aspects that were necessary for public interest considerations, particularly in relation to the classification and remuneration of correctional supervisors. Despite acknowledging the need for fair terms, the Commission concluded that the agreement failed to sufficiently protect employee rights and did not adequately reflect the public interest. Consequently, the application for approval of the Serco Clarence Correctional Supervisors Enterprise Agreement 2023 was dismissed.

The Fair Work Commission ordered that the application for approval of the Serco Clarence Correctional Supervisors Enterprise Agreement 2023 be dismissed. The Commission highlighted the importance of ensuring that enterprise agreements align with public interest principles, particularly in sensitive areas such as correctional services, and called for revisions to address the deficiencies identified in the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established