Application for approval of the Victorian Institute of Sport Enterprise Agreement 2025 - 2029

[1] An application has been made for approval of an enterprise agreement known as the Victorian Institute of Sport 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 Victorian Institute of Sport (VIS). The Agreement is a single enterprise agreement

[2] Several concerns were identified in the application for approval of this Agreement, and a mention was conducted involving VIS and the employee bargaining representatives. In response to the issues raised, VIS has provided written undertakings, a copy of which are attached in Annexure A.

[3] Importantly, it should be noted that the rates of pay applicable to persons covered by the Agreement are those set out in Attachment A to the undertaking attached in Annexure A.

[4] 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.

[5] The undertakings relate to:

1. The rates of pay applicable under the Agreement

2. That no person shall be employed under the Agreement in the classification described as Level 1A.

3. The interaction between the rates of pay table, and clause 15 of the Agreement.

4. The incorporation of the provisions of the State Government Agencies Award 2020 as terms of the Agreement.

5. The engagement of trainees under the Agreement.

6. The quantum of the first aid allowance.

Interaction with the National Employment Standards

[6] Clause 6 of the Agreement provides that it is to be read and interpreted in conjunction with the National Employment Standards (NES) and where there is an inconsistency between the NES and the Agreement, and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency (NES precedence clause). 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 13.4(f) of the Agreement deals with casual conversion. Section 66AB of the Act also deals with casual conversion and will in some circumstances provide entitlements in respect to casual conversion after employment for 6 months, not 12 months as is envisaged by clause 13.4(f) of the Agreement. In so far as the provisions of the Act may be more favourable, they will apply to employees covered by the Agreement as a result of the NES precedence clause.

2. Clause 34.4 of the Agreement deals with personal leave. It provides that for any period of personal leave of more than two days; an employee shall furnish either a certificate from a registered medical practitioner that is satisfactory to the VIS or a statutory declaration setting out the cause of such absence. Section 107(3) of the Act requires evidence of such to provided "that would satisfy a reasonable person". Thus, in so far as clause 34.4 purports to impose a more restrictive requirement, the NES precedence clause may operate to mean that the provision of lesser evidence may be satisfactory if it is of a kind that would satisfy a reasonable person.

3. Clause 34.5(c) of the Agreement requires that if it is not practicable for the employee to give prior notice of absence, the employee shall notify the VIS by telephone of such absence at the first opportunity on the day of absence, in respect to carer's leave. However, it should be noted s 107 of the Act, which may have application through the NES precedence clause, provides notice of this kind must be given as soon as practicable, which may be at a time after the leave has started.

4. Clause 40.1 of the Agreement requires that in respect to jury service leave (a type of communicate service leave) evidence satisfactory to the VIS of the amount of remuneration they received from the Court for their jury service. Section 110 of the Act requires evidence "that would satisfy a reasonable person".

[7] Section 205A of the Act relevantly provides:

205A Enterprise agreements to include a delegates' rights term etc.

(1) An enterprise agreement must include a delegates' rights term for workplace delegates to whom the agreement applies.

Note: Delegates' rights term is defined in section 12.

(2) However, if, when the agreement is approved, the delegates' rights term is less favourable than the delegates' rights term in one or more modern awards that cover the workplace delegates:

(a) the term in the enterprise agreement has no effect; and

(b) the most favourable term of those in the modern awards, as determined by the FWC, is taken to be a term of the enterprise agreement.

[8] Section 12 of the Act provides that a "delegates' rights term" means a term in a fair work instrument that provides for the exercise of the rights of workplace delegates.

[9] Clause 11 of the agreement is entitled "Employee Representatives" and is a delegates' rights clause because it provides generally for the exercise of the rights of workplace delegates. This clause is less beneficial than clause 27A of the State Government Agencies Award 2020 (the Award) because the Award term is more expansive in relation to several matters referred to briefly in clause 11 of the agreement, including:

1. Clause 27A.5 - right of representation; and

2. Clause 27A.6 - entitlement to reasonable communication; and

3. Clause 27A.7 - entitlement to reasonable access to the workplace and workplace facilities; and 

4. Clause 27A.8 - entitlement to reasonable access to training.

[10] Section 205A(2) of the Act provides that where a delegates' rights term is less favourable in an agreement compared to the modern award, the agreement term will have no effect, and the most favourable modern award term shall be taken to be a term of the enterprise agreement. I consider that the delegates right term in the Agreement is less favourable than the term in in the Award and pursuant to s.205A(2) of the Act, the delegates' rights term in clause 29A of the Award is taken to be a term of the Agreement and clause 11 of the Agreement has no effect.

[11] 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.

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

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