Application for approval of the First Super Union Collective Agreement 2024

[1] An application has been made for approval of an enterprise agreement known as the First Super Union Collective Agreement 2024 (Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (Act). It has been made by Trust Deed of First Super T/A First Super Pty Limited (Employer). The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached at 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 requirement of ss 186, 187, 188 and 190 as are relevant to this application for approval have been met. For the purposes of the better off overall test, I have had regard to each of the matters in s 193A(2)-(7).

[4] I observe that the following clauses are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 4.4 of the Agreement, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES:

• Clause 16 of the Agreement provides for majority agreement between employees and the Employer to the substitution of public holidays whereas s 115(3) of the Act appears to provide for an individual employee to agree with the Employer;

• Clause 17 provides that if the employee does not give the employer the required period of notice, then the Employer may withhold from any monies due to the employee an amount of money equal to the ordinary time pay the employee would have earned during the period of notice not given. Clause 17 also provides that any employee absent from work during a period of notice without reasonable cause (proof of which may be requested) will not be paid for the time. This clause does not appear to limit the source of monies which may be deducted. The effect of this is that this clause appears to permit the employer to withhold monies owing to the employee under the NES. This raises the issue that this clause may be inconsistent with Chapter 2 Part 2.2 Division 2 of the Act; and

• Clause 19 provides for abandonment of employment, however, does not state whether employees deemed to have abandoned their employment will be provided with notice of termination as required by s 117 of the Act.

[5] The Finance Sector Union of Australia being a bargaining representative for the Agreement supports the approval of the Agreement and 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 the organisation.

[6] The Agreement is approved and, in accordance with s 54 of the Act will operate from 27 March 2025. The nominal expiry date of the Agreement is 1 July 2027.

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