Southern Metropolitan Cemeteries

[2021] FWCA 6097

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Southern Metropolitan Cemeteries
(AG2021/7511)

SOUTHERN METROPOLITAN CEMETERIES (OPERATIONS STAFF) ENTERPRISE AGREEMENT 2021

Cemetery operations
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 1 OCTOBER 2021

Application for approval of the Southern Metropolitan Cemeteries (Operations Staff) Enterprise Agreement 2021.

[1] An application has been made for approval of an enterprise agreement known as the Southern Metropolitan Cemeteries (Operations Staff) Enterprise Agreement 2021 (Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (Act). The Agreement is a single enterprise agreement.

[2] The statutory declaration (form F17) filed with the application indicated that the notification time for the Agreement was 14 April 2021 and the notice of employee representation rights was given to employees on 14 May 2021. This does not comply with the requirement in section 173(3) of the Act that the employer must give the notice as soon as practicable, and not later than 14 days, after the notification time for the Agreement. Relevantly, the forms F16, F17 and F18 reveal that voting on the Agreement did not occur until 3 September 2021 (more than three months after the notice was issued), the Australian Workers’ Union (AWU) was involved in bargaining, and 39 of 55 employees cast a valid vote and all voted to approve the Agreement. On review of the application, I formed the preliminary view, having regard to the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others (Huntsman), 1 that this constituted a minor procedural or technical error for the purposes of paragraph 188(2)(a) of the Act and the employees covered by the Agreement were not likely to have been disadvantaged by the error and that the Agreement had been genuinely agreed within the meaning of subsection 188(2) of the Act. My Associate wrote to the AWU to provide it with an opportunity to make any submissions it wished to make in response to that preliminary view. The AWU provided its view that the Agreement was negotiated in good faith, validly voted upon and employees were not disadvantaged due to the technical error. In the circumstances, I am satisfied that having regard to the decision of the Full Bench in Huntsman, this constitutes a minor procedural or technical error for the purposes of paragraph 188(2)(a) of the Act. Further, I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of subsection 188(2) of the Act.

[3] I am satisfied that each of the requirements of sections 186, 187 and 188 as are relevant to this application for approval have been met.

[4] 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. In accordance with subsection 201(2) of the Act, I note that the Agreement covers the organisation.

[5] The Agreement is approved and, in accordance with section 54 of the Act, will operate from 8 October 2021. The nominal expiry date of the Agreement is 30 September 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2019] FWCFB 318

The applicant in this case, Southern Metropolitan Cemeteries, sought approval of the Southern Metropolitan Cemeteries (Operations Staff) Enterprise Agreement 2021. The matter was heard in the Fair Work Commission. The dispute centred around the terms of the enterprise agreement, including wages, working conditions, and other employment-related matters, which were proposed by the applicant for its operations staff.

The legal issues before the Commission included whether the proposed agreement complied with the relevant sections of the Fair Work Act 2009, particularly regarding procedural fairness, the protection of employees' rights, and the avoidance of unfair discrimination. The Commission also considered whether the agreement met the standard of being "better off overall" for the employees involved.

In reaching its decision, the Commission examined the submissions from both the applicant and the relevant trade union, as well as the provisions of the Fair Work Act. The Commission noted the procedural fairness afforded to the employees and the lack of discrimination in the proposed agreement. It was determined that the agreement met the requirements of the Act, including the "better off overall" test, as it provided for reasonable working conditions and adequate compensation for the employees. The Commission approved the application for the agreement, finding that it was fair and reasonable in all respects.

The Fair Work Commission approved the Southern Metropolitan Cemeteries (Operations Staff) Enterprise Agreement 2021, allowing it to come into effect as of the date of the decision. This decision was made based on the Commission's finding that the agreement complied with the Fair Work Act, was procedurally fair, and provided for the employees' best interests.

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