Application for approval of the Southern Metropolitan Cemeteries Trust Indoor Enterprise Agreement 2025 - 2029

[1] An application has been made for approval of an enterprise agreement known as the Southern Metropolitan Cemeteries Trust Indoor Enterprise Agreement 2025 - 2029 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Southern Metropolitan Cemeteries Trust. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. 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.

[3] 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.

[4] The Australian Municipal, Administrative, Clerical and Services Union (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 organisation.

[5] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

• Clause 18.11.4 and Clause 18.2.5 - Personal Leave (Carers' Leave) Notice: The clauses state that 'An Employee must notify the Employer (their leader) as soon as possible, prior to the start of their shift, if they are unable to attend work due to illness or injury.' This appears more restrictive than s.107 of the Act, which provides that notice must be given to the employer as soon as practicable (which may be a time after the leave has started).

• Clause 18.4.1 - Compassionate leave: provides for compassionate leave, however it is silent is relation to the entitlement when the employee, their spouse, or de facto partner has a miscarriage or gives birth to a stillborn child. This may be inconsistent with s 104(1)(c) of the Act.

However, noting clause 4.2 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.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 25 February 2026. The nominal expiry date of the Agreement is 18 February 2030.

[7] The Agreement as originally voted on contained a delegates' rights term at clause 22. It was one of many enterprise agreements that were made prior to the decision of the Full Court of the Federal Court in CMFEU v. Ai Group[1]. With the benefit of the Court's reasons, I identified what I considered to be defects in clause 22 of the Agreement and sought the parties views on making a variation pursuant to section 218A of the Act to address them.

[8] There is no doubt that there is a capacity to vary the agreement prior to its approval and in conjunction with the approval decision.[2] The variations in this case were the subject of some correspondence between my Chambers and the parties and reflect an agreed position between the bargaining representatives to amend clause 22 of the Agreement. I am satisfied they address the defects identified and are appropriate in the circumstances.

[9] A copy of the amendments made to clause 22 is attached below at Annexure B.

[10] I am satisfied that the amendments to clause 22 of the Agreement should be made and that it is appropriate to do so pursuant to section 218A of the Act. The amendments to clause 22 are made in accordance with a corrected copy of the Agreement, filed by the Employer on 17 February 2026. The Agreement attached to this Decision is the Agreement as varied and will operate from 25 February 2026.

[1] [2025] FCAFC 187.

[2] BHP Coal Ltd [2023] FWCA 115, Buller Ski Lifts Pty Ltd [2023] FWCA 844, Gippsland NDT Services [2024] FWCA 3838.

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