Young Mens Christian Association Of Geelong Inc T/A YMCA Geelong

[2024] FWCA 2086

[2024] FWCA 2086

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Young Mens Christian Association Of Geelong Inc T/A YMCA Geelong

(AG2024/1691)

YMCA GEELONG ENTERPRISE AGREEMENT 2024

Industries not otherwise assigned
COMMISSIONER ALLISON	MELBOURNE, 17 JUNE 2024

Application for approval of the YMCA Geelong Enterprise Agreement 2024

1. An application has been made for approval of an enterprise agreement known as the YMCA Geelong Enterprise Agreement 2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Young Mens Christian Association Of Geelong Inc T/A YMCA Geelong. The Agreement is a single enterprise agreement.

1. On 3 June 2024, my Chambers sent correspondence to the parties outlining a number of potential issues with the Agreement which required further action from the Employer. These issues included:

1. Clause 41 of the Agreement provides that trainees will be paid in accordance with Schedule E of the Miscellaneous Award 2020. I noted it was unclear how trainees can be considered better off overall under the Agreement.

2. I noted that the casual loading table for Youth and Community Employees at clause 17.6.2(b) of the Agreement did not provide for casual loading for work performed on the weekend, and that without this entitlement, it was unclear how Youth and Community Employees could be considered better off overall when compared to the Social, Community, Home Care and Disability Services Industry Award 2010. I sought submissions or an undertaking to address this issue.

1. Clause 17.3.2(i) of the Agreement provides minimum roster hours of 1 hour for Camping and Recreation classifications, in contrast to the minimum of 3 hours under the Fitness Industry Award 2020. I sought submissions or an undertaking in respect of this issue.

2. I noted that compared to the Clerks Private Sector Award 2020, the Agreement provided lower Sunday penalty rates, and was silent on shift penalties, in respect of Y Band Specialist Classifications. I sought submissions or an undertaking in respect of this issue.

1. I noted the pay rates for classification CS 2.1 from 1 April 2024 appeared inconsistently throughout the Agreement.

1. The Employer has provided written undertakings addressing issues 1, 2, 3, and 4 above. 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.

1. In response to issue 5, the Employer submitted that the discrepancy in pay rates for CS 2.1 is an “obvious error, defect or irregularity” and has sought that the Commission exercise its discretion pursuant to s.218A of the Act to amend it. I am satisfied that the discrepancy is an obvious error, defect or irregularity and I will amend the Agreement accordingly pursuant to s.218A of the Act.

1. I observe that the following provision may be inconsistent with the National Employment Standards (NES):

• Clause 58.4, relating to public holiday substitution, does not allow for a substitution of a public holiday to be made by agreement between the Employer and a single employee, as is allowed under s.115(3) of the Act.

1. However, noting clause 6 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.

1. 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.

1. The Australian Municipal, Administrative, Clerical and Services Union, being a bargaining representative of 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.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 24 June 2024. The nominal expiry date of the Agreement is 21 April 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE524924  PR775721>

Annexure A