Application for approval of the Victorian WorkCover Authority Enterprise Agreement 2024-2028

[1] An application has been made for approval of an enterprise agreement known as the Victorian WorkCover Authority Enterprise Agreement 2024-2028 (the Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (the Act). It has been made by Victorian WorkCover Authority (WorkCover). The Agreement is a single enterprise agreement.

Interaction with the National Employment Standards

[2] Clause 7.2 of the Agreement provides there is an inconsistency between the Agreement and the National Employment Standards (NES), and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency. 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 76.3(b) of the Agreement provides for the withholding of monies in circumstances where an employee has given insufficient notice of resignation. This clause appears to permit the employer to deduct monies from employee's entitlements under the NES (such as notice of termination, accrued but unused annual leave or long service leave on termination). Accordingly, this clause may be inconsistent with Chapter 2 Part 2.2 Division 2 of the Act however, when read in conjunction with the NES precedence clause (clause 7.2) will have no effect to the extent of any inconsistency.

2. Clause 79.4(a) of the Agreement provides that that the employer and a majority of affected employees may agree to substitute a public holiday for another day. This appears to be  inconsistent  with s 115(3) of the Act which provides that the substitution of a public holiday with another day may only occur by agreement between the employer and an employee, rather than a majority of employees. However, when read in conjunction with the NES precedence clause (clause 7.2) clause 79.4(a) will have no effect to the extent of any inconsistency with s 115(3) of the Act.

3. Public holidays - Clauses 79.1(a), 79.1(b), 79.1(c) and 79.1(d) deals with public holiday substitution. These clauses must be read with reference to s 115 of the Act, which prevails to the extent of any inconsistency by way of the NES precedence clause.

[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 Community and Public Sector Union (CPSU) 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 CPSU.

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

Variation to correct errors, defects or irregularities

[6] WorkCover has made an application that the Commission exercise its power to vary the Agreement, pursuant to s 218A of the Act. Section 218A provides the Commission may vary an enterprise agreement to correct or amend an obvious error, defect or irregularity.

[7] The terms of the variation sought are:

1. To delete the "contents page" in its entirety and replace it with the table in Annexure A.

2. To delete the table appearing on pages 112 - 113 of the Agreement, which deals with wage rates applying from Band 1 to 6 and replace it with the table in Annexure B.

[8] I provided the bargaining representatives with an opportunity to express any views they may have about the variation sought. None expressed any objection to the application made by WorkCover.

[9] I am satisfied that the variation sought is to correct an obvious error, defect or irregularity.

[10] The Agreement is varied and, in accordance with s 218A(3) of the Act the variation will operate from 10 April 2025.

[11] For the avoidance of any doubt, the version of the Agreement attached to this decision is the version as varied.

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