Tobin Brothers Funerals Pty Ltd T/A Tobin Brothers Funerals

[2015] FWCA 7573

[2015] FWCA 7573

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Tobin Brothers Funerals Pty Ltd T/A Tobin Brothers Funerals
(AG2015/5819)

TOBIN BROTHERS FUNERALS ENTERPRISE AGREEMENT 2014

Funeral directing
DEPUTY PRESIDENT BULL	SYDNEY, 9 NOVEMBER 2015

Application for approval of the Tobin Funerals Enterprise Agreement 2014

[1] An application has been made by Tobin Brothers Pty Ltd (the applicant) for the approval of an enterprise agreement known as the Tobin Funerals Enterprise Agreement 2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and is a single enterprise agreement.

[2] The Agreement covers all employees except the owners, company directors, and senior management and Tobin family members. As per the requirement under s.186(3) of the Act, I am satisfied that the group of employees to be covered by the Agreement was fairly chosen based on the operational distinction of the employees having been chosen.

[3] The Australian Workers’ Union (AWU) was an employee organisation involved in the agreement making process as a bargaining representative. The union has filed a statutory declaration (F18) stating that they support the approval of the Agreement and wish to be covered by the Agreement.

[4] The Fair Work Commission (the Commission) wrote to the applicant, on 29 October 2015 with respect to concerns with the Agreement. In particular, the concerns related to:

1. The application not containing the Notice of Employee Representational Rights (NERR);
2. Dispute settlement term not meeting the requirements under s.186(6) of the Act;
3. Consultation term not meeting the requirements under s.205(1)(A); and

4. Flexibility clause not meeting the requirements under s.204;

[5] Correspondence addressing the Commission’s concerns was received from the applicant on 2 November 2015.

Notice of Employee Representational Rights

[6] Pursuant to s.174 of the Fair Work Act 2009 (the Act), the NERR must provide certain prescribed content, to satisfy sections 186 and 188 of the Act relating to whether employees have genuinely agreed to the proposed agreement. A copy of the NERR was not submitted with the application to enable the Commission to assess whether the NERR had complied with the Act.

[7] At the request of the Commission, the applicant provided a copy of the NERR which was distributed to the employees to be covered by the Agreement. The NERR complies with s.174 of the Act.

Dispute settlement term

[8] With respect to cl.8 – Issue resolution, the clause does not meet the requirements of s.186(6) of the Act, in particular it does not allow for the settlement procedure for matters arising under the Agreement and in relation to the National Employment Standards.

[9] The model dispute resolution term at Schedule 6.1 of the Fair Work Regulations 2009 is taken to be a term of the Agreement. A copy of the model consultation term is attached at Annexure A of this decision.

Consultation Term

[10] The consultation clause at 2.11 – Consultation before change, does not contain a provision which allows for representation, therefore not meeting the requirements under s.205 of the Act.

[11] The model consultation term at Schedule 2.3 of the Act will be taken to be a term of the Agreement. A copy of the model consultation term is attached at Annexure B of this decision.

Flexibility Term

[12] The flexibility clause contained at 2.16- Flexibility, does not the requirements of s.204 of the Act, in particular it does not set out the terms of the Agreement which may be varied by an individual flexibility arrangement.

[13] The model flexibility term at Schedule 2.2 of the Act will be taken to be a term of the Agreement. A copy of the model flexibility term is attached at Annexure C of this decision.

Conclusion

[14] Taking into account the significantly higher rates of pay under the Agreement when compared to the Award, I am satisfied that the Agreement results in employees being better off under the Agreement.

[15] The AWU has stated in its F18 that it wishes to be covered by the Agreement, in accordance with s.201(2) of the Act, I note that the Agreement covers this employee organisation.

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

[17] The Agreement is approved. In accordance with s.54(1), the Agreement will operate from 16 November 2015. The nominal expiry date of the Agreement is 30 June 2017.

DEPUTY PRESIDENT

Annexure A

Annexure B

Annexure C

Printed by authority of the Commonwealth Government Printer

<Price code C, AE416479  PR573583>