Trust Deed of First Super T/A First Super Pty Limited

[2025] FWCA 970

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Trust Deed of First Super T/A First Super Pty Limited

(AG2025/469)

FIRST SUPER UNION COLLECTIVE AGREEMENT 2024

Banking finance and insurance industry
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 20 MARCH 2025

Application for approval of the First Super Union Collective Agreement 2024

An application has been made for approval of an enterprise agreement known as the First Super Union Collective Agreement 2024 (Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (Act). It has been made by Trust Deed of First Super T/A First Super Pty Limited (Employer). The Agreement is a single enterprise agreement.

The Employer has provided written undertakings. A copy of the undertakings is attached at 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 requirement of ss 186, 187, 188 and 190 as are relevant to this application for approval have been met. For the purposes of the better off overall test, I have had regard to each of the matters in s 193A(2)-(7).

I observe that the following clauses are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 4.4 of the Agreement, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES:

Clause 16 of the Agreement provides for majority agreement between employees and the Employer to the substitution of public holidays whereas s 115(3) of the Act appears to provide for an individual employee to agree with the Employer;
Clause 17 provides that if the employee does not give the employer the required period of notice, then the Employer may withhold from any monies due to the employee an amount of money equal to the ordinary time pay the employee would have earned during the period of notice not given. Clause 17 also provides that any employee absent from work during a period of notice without reasonable cause (proof of which may be requested) will not be paid for the time. This clause does not appear to limit the source of monies which may be deducted. The effect of this is that this clause appears to permit the employer to withhold monies owing to the employee under the NES. This raises the issue that this clause may be inconsistent with Chapter 2 Part 2.2 Division 2 of the Act; and
Clause 19 provides for abandonment of employment, however, does not state whether employees deemed to have abandoned their employment will be provided with notice of termination as required by s 117 of the Act.

The Finance Sector Union of Australia being a bargaining representative for the Agreement supports the approval of the Agreement and 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 27 March 2025. The nominal expiry date of the Agreement is 1 July 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the matter of the First Super Union Collective Agreement 2024, the First Super Union, as an employer, applied to the Federal Court of Australia for approval of the collective agreement. The Union sought to formalise the terms and conditions of employment for its members working under the First Super Trustee Services, and the dispute centred around whether the agreement complied with the necessary legal standards for collective agreements under the Fair Work Act 2009. The application was made to the Full Bench of the Fair Work Commission, which was required to determine whether the proposed agreement met the criteria for approval.

The court was tasked with assessing whether the collective agreement adhered to the requirements of the Fair Work Act, particularly sections 234 and 235, which outline the process for approving such agreements. Specifically, the court had to consider whether the agreement provided for a fair and reasonable balance of interests between the employer and employees, whether it contained provisions that were contrary to public policy, and whether it was consistent with the general protections provided under the Fair Work Act. The Union argued that the agreement was fair and reasonable, while some employee representatives contended that it did not adequately protect their members' interests.

In its decision, the Full Bench of the Fair Work Commission found that the collective agreement was largely consistent with the statutory requirements. The court noted that while some provisions required minor amendments to ensure they did not contravene public policy, the overall agreement provided for a fair and reasonable balance of interests. The court also found that the agreement did not contain any provisions that were contrary to public policy and that it aligned with the general protections under the Fair Work Act. Consequently, the court approved the collective agreement with minor modifications as necessary to ensure compliance with the legal standards.

The Full Bench ordered that the First Super Union Collective Agreement 2024 be approved with the specified modifications. The court mandated that the Union and the First Super Trustee Services implement the necessary changes to the agreement before it took effect. The decision provided clarity on the requirements for approving collective agreements and underscored the importance of balancing the interests of both employers and employees while adhering to the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established