Application for approval of the Millingtons Cemeteries Outdoor Staff Enterprise Agreement 2025-2028

[1] An application has been made for approval of an enterprise agreement known as Millingtons Cemeteries Outdoor Staff Enterprise Agreement 2025-2028 (the Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (the Act). It has been made by Millingtons Cemetery Services Pty Ltd (Millingtons). The Agreement is a single enterprise agreement.

[2] Section 185(3)(a) of the Act provides that an application for approval of an agreement must be made no later than 14 days after the agreement being made. The Agreement was made on 6 February 2026 and the application lodged on 22 February 2026, some 16 days after the Agreement was made and therefore 2 days late. It is evident however that this occurred due to the application having been re-filed with amendments. There earlier application was filed in time, and, taking this into account I am satisfied in all the circumstances that it is fair to extend the period to the date on which the application was lodged.

[3] The Notice of Employee Representational Rights (NERR) distributed to employees was not in the prescribed form, as the pre-reform version has been used. Nevertheless, in the circumstances, I am satisfied that this constitutes a minor procedural or technical error for the purposes of s.188(5) of the Act. Further, 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 within the meaning of s 188 of the Act.

Interaction with the National Employment Standards

[4] I note clause 1.4 of the Agreement provides that if the provisions of the National Employment Standards (NES) are more favourable to an employee that provisions of the agreement, in a particular respect, the NES will prevail. On this basis I am satisfied several inconsistencies between the Agreement and the NES will not prevent approval of the Agreement, given that in those respects the NES will prevail.

[5] The Australian Municipal, Administrative, Clerical and Services Union (ASU), who was a bargaining representative for the Agreement, supports the approval of the Agreement but brought to the Commission's attention that several clauses of the Agreement are less favourable than the Cemetery Industry Award 2020 (the Award), in some respects. I have considered whether each Award covered employee, and each reasonably foreseeable employee, for the agreement would be better off overall if the Agreement applied to the employee than if the Award applied to the employee. Notwithstanding several provisions of the Agreement are inferior to Award provisions, a global assessment of whether each employee would better off leads to me satisfaction that the Agreement passes the BOOT test, particularly taking into account rates of pay which are significantly higher than those provided for by the Award.

[6] On the basis of the material filed in support of the application, 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.

[7] The ASU 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) I note that the Agreement covers the ASU.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate 7 days after approval.

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