Alice Springs Town Council

[2019] FWCA 560

[2019] FWCA 560

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Alice Springs Town Council
(AG2018/6845)

ALICE SPRINGS TOWN COUNCIL ENTERPRISE AGREEMENT

Local government administration
COMMISSIONER PLATT	ADELAIDE, 31 JANUARY 2019

Application for approval of the Alice Springs Town Council Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Alice Springs Town Council Enterprise Agreement 2019 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Alice Springs Town Council. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 11 January 2019.

[3] On 17 January 2019, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Respondent to address these matters including the provision of an undertaking.

[4] Section 174 of the Act prescribes the content of the Notice of Employee Representational Rights (NERR). This content contains a reference that an agreement can set the wages and conditions of employment for a period of up to 4 years. From the information provided to my Chambers it appears that the Applicant amended the period to reflect the agreement duration it was seeking. I am satisfied (taking into consideration s.188(2) of the Act and the decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others 1) that the procedural or technical error is minor and that the employees were not likely to have been disadvantaged, and accordingly, that there has been a genuine agreement.

[5] The Applicant has submitted an undertaking in the required form dated 30 January 2019. The undertaking deals with the following (relevant) topics:

•  For the purposes of the Agreement and the National Employment Standards, the definition of a shift worker is that contained in the Local Government Industry Award 2010 (the Award).

•  Annual Leave (Clause F1) and Personal/Carer’s leave (Clause F3) will accrue progressively.

•  A person abandoning their employment will receive a payment in lieu of notice of termination in accordance with s.117 of the Act (Clause D9.1).

•  In relation to hours worked by part-time employees, the Employer undertakes that:

“(a) Agreed additional hours for part-time employees

A part-time employee may agree to work up to an average of 38 ordinary hours per week at the hourly ordinary time rate provided the agreement is entered into without duress, in writing and stipulates that hours are to be paid at hourly ordinary time rates.

(b) Additional hours by direction for part-time employees

Where a part-time employee is directed to work hours in excess of the hours agreed under clause 10.4(c) of the Local Government Industry Award or as varied under clause 10.4(d) of that award, such hours will be overtime and paid for at the rates prescribed in clause 24.2 of that award.”

•  The deduction contemplated by Clause B3.8 of the Agreement will be subject to the provisions of s.324 and s.326 of the Act.

•  A casual employee will be defined as an employee who is not engaged on a regular and systematic basis (Clause A2).

•  The Employer undertakes that municipal employees at level 9 or 10 will be paid not less than the comparable level of the Award.

[6] A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives that responded, supported the undertaking.

[7] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[8] As the Agreement does not contain a consultation term which meets the requirements of s.205 of the Act, the model consultation term is taken to be a term of the Agreement.

[9] As the Agreement does not contain a flexibility term which meets the requirements of s.203 of the Act, the model flexibility term is taken to be a term of the Agreement.

[10] The “Australian Municipal, Administrative, Clerical and Services Union (ASU)” and the “United Voice”, being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they wants the Agreement to cover them. In accordance with s.201(2) of the Act I note that the Agreement covers these organisations.

[11] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act 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 from 7 days from the date of approval of the Agreement. The nominal expiry date is 7 February 2022.

COMMISSIONER

 1  [2019] FWCFB 318.

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