Telecommunications Industry Ombudsman Limited T/A Telecommunications Industry Ombudsman

[2022] FWCA 4270

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Telecommunications Industry Ombudsman Limited T/A Telecommunications Industry Ombudsman

(AG2022/4805)

Telecommunications Industry Ombudsman Ltd Enterprise Agreement 2021

Telecommunications Industry
DEPUTY PRESIDENT DOBSON	BRISBANE, 7 DECEMBER 2022

Application for approval of the Telecommunications Industry Ombudsman Ltd Enterprise Agreement 2021

An application has been made for approval of an enterprise agreement known as the Telecommunications Industry Ombudsman Enterprise Agreement 2021 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Telecommunication Industry Ombudsman Ltd (the Applicant). The Agreement is a single enterprise agreement.

The Applicant has provided written undertakings. 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 views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

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

Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

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

• Clause 25.6 – Deductions.
• Clause 29.2 – Public Holidays.

However, noting clause 1.3 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 Australian, Municipal, Administrative, Clerical and Services Union (ASU) lodged a Form F18 statutory declaration giving 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 the Agreement covers the ASU.

The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 30 June 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Telecommunications Industry Ombudsman Limited, trading as the Telecommunications Industry Ombudsman (TIO), applied for approval of its Enterprise Agreement 2021 under section 234 of the Fair Work Act 2009. The application was heard by the Fair Work Commission. The dispute centered around the terms and conditions set forth in the proposed Enterprise Agreement, which governs the employment of TIO's staff. The legal issues before the Commission were whether the proposed agreement met the 'better off overall test' and whether it complied with the Fair Work Act's provisions.

The Commission considered whether the proposed agreement provided employees with a better overall package of pay and conditions compared to the applicable awards and whether it included all mandatory terms. The TIO argued that the agreement was fair and reasonable, providing benefits such as additional leave provisions, flexible working arrangements, and performance-based increments. The Commission examined these claims against the backdrop of the applicable awards to determine if the proposed agreement indeed met the statutory requirements. The Commission also assessed whether the agreement contained all the mandatory terms as required by the Fair Work Act.

After careful consideration of the evidence and arguments presented, the Commission approved the Enterprise Agreement 2021, finding that it met the better off overall test and contained all the mandatory terms. The Commission concluded that the proposed agreement provided employees with improved conditions compared to the applicable awards, thus satisfying the statutory requirements. The Commission emphasised that the agreement provided a fair balance of rights and obligations for both the TIO and its employees.

The Commission approved the Telecommunications Industry Ombudsman Limited Enterprise Agreement 2021, effective from the date of the decision. The approval ensures that the agreement will govern the terms and conditions of employment for TIO's staff, subject to the Fair Work Act's provisions.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established