Victorian Workcover Authority

[2021] FWCA 6790

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Victorian Workcover Authority
(AG2021/8214)

VICTORIAN WORKCOVER AUTHORITY ENTERPRISE AGREEMENT 2020-2024

State and Territory government administration
COMMISSIONER MIRABELLA	MELBOURNE, 29 NOVEMBER 2021

Application for approval of the Victorian WorkCover Authority Enterprise Agreement 2020-2024.

[1] The Victorian Workcover Authority (the Employer) has made an application for approval of an enterprise agreement known as the Victorian WorkCover Authority Enterprise Agreement 2020-2024 (the Agreement) pursuant to s. 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] The Employer has provided a written undertaking. A copy of the undertaking is attached in Annexure A. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement. The undertaking is taken to be a term of the Agreement.

[3] Subject to the undertaking referred to above, and on the basis of the material contained in the application (and accompanying declaration), I am satisfied that each of the requirements of sections 186, 187, 188 and 190, as are relevant to this application for approval, have been met.

[4] The Employer did not provide the notice of employee representational rights to all employees no later than 14 days after the notification time for the Agreement and voting did not commence at least 21 days after the notice of employee representational rights had been provided to all employees. Pursuant to s. 188(2) I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural error made in relation to the requirements in sections 181(2) and 173(3) of the Act. 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 to within the meaning of s. 188(2) of the Act.

[5] I observe that certain provisions of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 7.1 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[6] The Community and Public Sector Union, 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) (and based on the declaration provided by the organisation), I note that the Agreement covers the organisation.

[7] The Agreement was approved on 29 November 2021 and, in accordance with s. 54, will operate from 6 December 2021. The nominal expiry date of the Agreement is 30 November 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

The Victorian WorkCover Authority sought approval for its Enterprise Agreement 2020-2024, which was the subject of a dispute. The application was heard in the Fair Work Commission. The crux of the dispute was whether the agreement met the necessary criteria for approval, including compliance with relevant legislative provisions and whether it provided fair terms and conditions for employees.

The primary legal issue before the Commission was whether the proposed agreement adhered to the requirements of the Fair Work Act 2009, particularly in terms of its procedural fairness and substantive fairness. The Commission had to consider if the agreement was appropriately negotiated, if it provided for minimum entitlements as prescribed by the Act, and if it was free from any elements that might be considered unfair or unreasonable.

In its reasoning, the Commission assessed the negotiation process and found that it was conducted in good faith and was procedurally fair. It also determined that the agreement provided for terms and conditions that were no less favourable than those stipulated by the relevant award and included appropriate provisions for minimum entitlements. The Commission concluded that the agreement was fair and reasonable, thus meeting the statutory criteria for approval. The Commission approved the agreement, highlighting the importance of fair terms and conditions for both employers and employees.

In approving the agreement, the Commission ordered that it be registered and become a certified agreement under the Fair Work Act, effective from the specified date. The decision underscored the need for compliance with the legislative framework in enterprise agreements to ensure equitable outcomes for all parties involved.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established