Fair Work Act 2009

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

Library Board of Victoria t/a State Library of Victoria and others

CULTURAL AND CREATIVE AGENCIES ENTERPRISE AGREEMENT 2025

Application for approval of the Cultural and Creative Agencies Enterprise Agreement 2025.

[1] An application has been made for approval of an enterprise agreement known as the Cultural and Creative Agencies Enterprise Agreement 2025 (the Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (the Act). The application was made by the following (together, "the agencies"):

1. Library Board of Victoria (t.as State Library Victoria) (SLV)

2. The Council of Trustees of the National Gallery of Victoria (NGV)

3. Australian Centre for the Moving Image (ACMI)

4. Film Victoria (t/as VicScreen) (VicScreen)

5. Museums Board of Victoria (t/as Museums Victoria) (MV)

[2] The application describes the Agreement as a "multi-enterprise agreement". Section 12 of the Act defines a "multi-enterprise agreement" as an enterprise agreement made as referred to in s 172(3) of the Act. Section 172(3) relevantly describes a multi enterprise agreement as one made with two or more employers that are not all related employers, with the employees who are employed at the time the agreement is made and who will be covered by the agreement.

[3] The Agreement is plainly an agreement made involving two or more employers that are not all related employers. No supported bargaining or single interest employer authorisation was made in respect of the Agreement. It is therefore a "cooperative workplace agreement" within the meaning of s 12 of the Act.

[4] The circumstances in which the Commission must approve a multi-enterprise agreement that is a cooperative workplace agreement are broadly similar to when dealing with an application for approval of a single-enterprise agreement.

[5] However, one difference is that s 180A of the Act requires that an employer must not request its employees approve an enterprise agreement by voting for it unless each bargaining representative for the enterprise agreement that is an employee organisation has provided the employers with written agreement to the making of the request; or a voting request order has been made to permit the employer to make the request.

[6] There are two Union bargaining representatives for the Agreement - the Community and Public Sector Union SPSF Group (CPSU) and the Media, Entertainment and Arts Alliance (MEAA). In the material filed in support of the application, it was made clear that CPSU provided this written authorisation but there was some doubt as to whether it had been provided by MEAA.

[7] MEAA said, in correspondence with the Commission, that while it provided verbal agreement to the vote proceeding, due to an oversight on its part, written agreement was not provided.

[8] In response to this issue the agencies referred to this correspondence from MEAA and submitted as follows:

1. MEAA provided express verbal agreement to proceed to the vote in a discussion between representatives of ACMI and MEAA.

2. MEAA supports approval of the agreement and has not referred to any issues with it.

3. The "primary bargaining representative" - CPSU - did provide its agreement that the vote occur.

4. The Commission should exercise its power pursuant to s 188(5) of the Act to disregard this "minor technical error" because it should not impact upon the conclusion that the agreement has been genuinely agreed.

[9] Section 180A(1) of the Act provides, explicitly, that the section applies to a proposed enterprise agreement that is a multi-enterprise agreement and, as I have found above, the present agreement is clearly such an agreement.

[10] Section 180A(2) of the Act provides an employer must not request its employees approve an enterprise agreement of this kind, without the requirements as to written agreement or a voting request order being met.

[11] An agreement provided verbally by MEAA does not meet this requirement. I consider on the basis of the material before me that this requirement has not been met.

[12] In these circumstances, the employees employers should not have been asked to vote on the proposed agreement.

[13] Section 188(5) of the Act provides the Commission with discretion to overlook some minor procedural or technical errors if it satisfied that the employees were not likely to have been disadvantaged by those errors. The requirement at s 188A is encompassed within the discretion by operation of s 188(5)(ab).

[14] I consider that the requirement in s 180A of the Act is not easily dispensed with. It seems likely that the circumstances in which the Commission might disregard a failure to comply with s 180A pursuant to s 188(5) is likely to be extremely limited. Ordinarily, it seems unlikely such a failure could be characterised as minor. However, in the circumstance before me, I consider it carries significant weight that the Union itself submits the error should be disregarded, presumably, from the perspective of its members who it considers not to have been disadvantaged by it. I consider it unlikely employees will have been disadvantaged by the failure to obtain MEAA's written agreement for the vote to be conducted. With this in mind, I consider it appropriate to disregard the absence of written approval of the MEAA to provide its written agreement in accordance with s 188(5).

[15] The agencies made submissions in relation to several concerns raised about aspects of the agreement in relation to the operation of the Better Off Overall Test (BOOT test), including in relation to the patterns or kinds of work, or types of employment that are reasonably foreseeable at this time. The submissions asserted, among other things, that the Commission should have regard to the views of the bargaining representatives - particularly those of CPSU (described as the "main bargaining representative") - as a "common view" within the meaning of s 193A(4) of the Act that the agreement passes the BOOT test.

[16] As well as providing further submissions, undertakings on several matters were provided. The undertakings relate to:

1. Interaction with the National Employment Standards

2. Classification of certain employees at MV

[17] I sought the views of the bargaining representatives in relation to the undertakings provided pursuant to s 190(4) of the Act and there were no objections made in relation to them

[18] 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.

[19] On the basis of the undertakings provided, and taking into account the common view expressed by the bargaining representatives, I am satisfied that each Award covered employee and each reasonably foreseeable employee for the Agreement will be better off overall than if the relevant modern Award applied to that employee.

[20] One of the undertakings relating to the interaction between the Agreement and the National Employment Standards (NES) - the NES precedence undertaking. This undertaking, which is taken to be a term of the Agreement pursuant to s 191(1) of the Act, provides that where there is an inconsistency between the Agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of any inconsistency.

[21] On this basis, I am satisfied that the apparent inconsistencies with the NES outlined below do not prevent the approval of this Agreement:

1. Clause 18.5 - casual conversion.

[22] The CPSU and MEAA have given notice under s.183 of the Act that they want the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the CPSU and MEAA.

[23] 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.

[24] The Agreement is approved in respect to each of the applicants. In accordance with s 54 of the Act, the Agreement will operate 7 days after approval. Its nominal expiry date is 9 April 2028.

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