Serco Australia Pty Limited Summary

[2022] FWCA 3255

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Serco Australia Pty Limited

(AG2022/3502)

Serco South Australian Correctional Officers Enterprise Agreement 2022

Corrections and detentions
COMMISSIONER MATHESON	SYDNEY, 16 SEPTEMBER 2022

Application for the approval of the Serco South Australian Correctional Officers Enterprise Agreement 2022.

An application has been made for approval of an enterprise agreement known as the Serco South Australian Correctional Officers Enterprise Agreement 2022 (Agreement). The application was made by Serco Australia Pty Limited (Applicant) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single enterprise agreement.

I observe that certain provisions of the Agreement may be inconsistent with the National Employment Standards (NES). However, noting clause 6.2 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Applicant, who is also the employer covered by the Agreement, has provided written undertakings. A copy of the undertakings is attached at Annexure A of this decision (Undertakings). The views of each person I know is a bargaining representative for the Agreement were sought in relation to the Undertakings and no objections were raised. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a)cause financial detriment to any employee covered by the Agreement; or

(b)result in substantial changes to the Agreement.

Pursuant to s.190(3) of the Act, I accept the Undertakings.

Subject to the Undertakings, and on the basis of the materials before the Commission, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to the application for approval of the Agreement have been met.

The United Workers’ 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) of the Act, I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 23 September 2022. The nominal expiry date of the Agreement is 23 September 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Serco Australia Pty Limited applied to the Fair Work Commission for the approval of the Serco South Australian Correctional Officers Enterprise Agreement 2022. The application was made under section 185 of the Fair Work Act 2009. The Agreement was a single enterprise agreement. The Fair Work Commission was required to determine whether the Agreement met the requirements of the Act for approval. Specifically, the Commissioner had to consider whether the Agreement complied with the National Employment Standards and whether the requirements of sections 186, 187, 188, and 190 of the Act had been met. The Commissioner also needed to assess the effect of the written undertakings provided by Serco Australia and consider any objections raised by the bargaining representatives.

The Commissioner found that certain provisions of the Agreement were inconsistent with the NES but was satisfied that the more beneficial entitlements of the NES would prevail where there was an inconsistency. The Commissioner accepted the written undertakings provided by Serco Australia, which included a commitment that the more beneficial entitlements of the NES would prevail. The Commissioner was satisfied that the effect of accepting the Undertakings would not cause financial detriment to any employee covered by the Agreement or result in substantial changes to the Agreement. The Commissioner also noted that the United Workers’ Union, a bargaining representative for the Agreement, had given notice that it wanted the Agreement to cover it, and the Agreement was approved to cover the organisation.

The Fair Work Commission approved the Agreement, which will operate from 23 September 2022 and expire on 23 September 2023. The Commissioner noted that the Agreement covered the organisation and that the requirements of sections 186, 187, 188, and 190 of the Act had been met. The Commissioner was satisfied that the Agreement met the requirements for approval under the Act. The Agreement will now be registered with the Fair Work Ombudsman and will apply to the employees covered by it.

Serco Australia Pty Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established