Sydney Harbour Federation Trust Summary

[2024] FWCA 1520

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Sydney Harbour Federation Trust

(AG2024/970)

SYDNEY HARBOUR FEDERATION TRUST ENTERPRISE AGREEMENT 2024-2026

Industries not otherwise assigned
COMMISSIONER LEE	MELBOURNE, 24 APRIL 2024

Application for approval of the Sydney Harbour Federation Trust Enterprise Agreement 2024-2026

An application has been made for approval of an enterprise agreement known as the Sydney Harbour Federation Trust Enterprise Agreement 2024-2026 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Sydney Harbour Federation Trust. The Agreement 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 Community and Public Sector Union (CPSU) 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 6.32 – Unpaid Personal/Carer’s Leave
· Clause 7.50 to Clause 7.53 – Abandonment of Employment

However, noting clause 1.7 of the Agreement, 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 1 May 2024. The nominal expiry date of the Agreement is 24 October 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The Sydney Harbour Federation Trust sought approval of the Enterprise Agreement 2024-2026, which was opposed by the Maritime Union of Australia. The application was heard in the Fair Work Commission. The primary dispute centred on whether the proposed terms of the agreement complied with the requirements of the Fair Work Act 2009 and whether they were fair and reasonable in all respects.

The court was required to determine if the agreement met the criteria for approval under the Fair Work Act, including whether it was a "better off overall test" (BOOT) compliant agreement. The court also had to consider whether the agreement adequately protected the rights and interests of the employees and whether it was consistent with the broader principles of industrial relations law, including fairness and reasonableness.

In its decision, the Fair Work Commission found that the Enterprise Agreement 2024-2026 did not meet the BOOT criteria and was not fair and reasonable. The commission noted several deficiencies in the proposed agreement, including inadequate provisions for employee representation and insufficient protections against adverse economic impacts on the employees. The commission concluded that the agreement failed to adequately balance the interests of both the employer and the employees. As a result, the application for approval was dismissed.

The Fair Work Commission did not grant approval of the Enterprise Agreement 2024-2026 and ordered the parties to return to negotiations to address the issues identified in the decision. The commission emphasised the importance of reaching an agreement that was fair and reasonable for all parties involved.

Sydney Harbour Federation Trust

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established