Zoological Parks & Gardens Board T/A Zoos Victoria

[2024] FWCA 4105

[2024] FWCA 4105

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Zoological Parks & Gardens Board T/A Zoos Victoria

(AG2024/3745)

ZOOS VICTORIA SALARIED STAFF AGREEMENT 2023

Tourism industry
COMMISSIONER CONNOLLY	MELBOURNE, 25 NOVEMBER 2024

Application for approval of the Zoos Victoria Salaried Staff Agreement 2023

1. An application has been made for approval of an enterprise agreement known as the Zoos Victoria Salaried Staff Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Zoological Parks & Gardens Board T/A Zoos Victoria (the Applicant). The Agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 22 October 2024.

1. The notification time for the Agreement under s.173(2) was 14 November 2023 and the Agreement was made on 13 September 2024.  Accordingly, the genuine agreement requirements the Agreement is to be assessed under are those applying after 6 June 2023 and the better off overall test (BOOT) is that applying on and from 6 June 2023. [1] 

1. On 29 October 2024, the Employer was invited to address aspects of the Agreement including through the provision of an undertaking.

1. There are four National Employment Standards (NES) issues that require comment:

• Annual Leave (accrual): Clause 62 states that an employee is entitled to accrue 20 days of annual leave, inconsistent with s.87(1) of the Act which specifies annual leave in weeks.
• Compassionate Leave: The entitlement to compassionate leave provided by Clause 68 does not appear to be triggered after the stillbirth of a child of the employee or a member of the employee’s immediate family or household as per s.105(1)(b) of the Act or after the employee or the employee’s spouse or de facto partner has a miscarriage as per s.105(1)(c) of the Act.
• Public Holidays: Clause 74.2.1.1 provides that that the employer and employees may agree to substitute a public holiday for another day. This appears to be inconsistent with s.115(3) of the Act, which provides that the substitution of a public holiday with another day may only occur by agreement between the employer and an individual employee, rather than a majority of employees.
• Casual Conversion: The Agreement contains the pre-26 August conversion scheme, however, does not make note of new employee choice conversion provisions which will be available to eligible employees from Feb 2025.

1. Clause 6.3 of the Agreement acts as an effective NES precedence clause, in that it states that “No term of this Agreement will operate to exclude any entitlement provided by the National Employment Standards (NES) or to provide any entitlement which is detrimental to an employee's entitlement under the NES. For the avoidance of doubt, if there is any inconsistency between this Agreement and the NES to the detriment of an employee, the NES will prevail.” As a result of the NES precedence clause, the above clauses will not apply to the extent that they are inconsistent with the NES.

1. The Applicant has provided written undertakings, dated 6 November 2024, and a copy is attached in Annexure A. A copy of the undertaking has been provided to the bargaining representative and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative that responded, supported the undertaking.

1. 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, thus appearing to meet the requirements of s.190(3). The undertaking is taken to be a term of the Agreement.

1. CPSU, 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) of the Act I note that the Agreement covers this organisation.

1. I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A of the Act as are relevant to this application for approval have been met.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 31 May 2028.

COMMISSIONER

Annexure A

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.

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