Alpine Shire Council T/A Alpine Shire Council

[2021] FWCA 5978

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Alpine Shire Council T/A Alpine Shire Council
(AG2021/6890)

ALPINE SHIRE COUNCIL ENTERPRISE AGREEMENT 2020

Local government administration
DEPUTY PRESIDENT YOUNG	MELBOURNE, 23 SEPTEMBER 2021

Application for approval of the Alpine Shire Council Enterprise Agreement 2020

[1] Alpine Shire Council T/A Alpine Shire Council (the Employer) has made an application for approval of an enterprise agreement known as the Alpine Shire Council Enterprise Agreement 2020 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] The Notice of Representational Rights (NERR) was provided to a covered employee more than 14 days after the notification time. The Employer provided submissions as to this error on 10 September 2021. I am satisfied having regard to those submissions and the Full Bench decision in Huntsman Chemical Company Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Others 1 (Huntsman)that this constitutes a minor technical or procedural error for the purposes of s 188(2)(a) of Act. Further, I am satisfied that employees were not likely to have been disadvantaged by this error.

[3] Accordingly, notwithstanding the matters identified in paragraph [2] above, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2).

[4] 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 the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

[5] Subject to the undertakings referred to above, and on the basis of the material contained in the application, and the accompanying statutory declaration and the additional information provided by the Employer, 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.

[6] I observe that clause 51.3 of the Agreement is likely to be inconsistent with the National Employment Standards (NES). However, noting clause 6 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.

[7] The Australian Nursing and Midwifery Federation and the Australian Municipal, Administrative, Clerical and Services Union, being bargaining representatives for the Agreement, have given notice under s 183 of the Act that they seek to be covered by the Agreement. In accordance with s 201(2) and based on the statutory declarations provided by these organisations, I note that the Agreement covers these organisations.

[8] The Agreement was approved on 23 September 2021 and, in accordance with s 54, will operate from 30 September 2021. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

1 [2019] FWCFB 318

CaseChat Overview and Summary

In the case of the Alpine Shire Council T/A Alpine Shire Council, the matter before the Fair Work Commission involved an application for approval of the Alpine Shire Council Enterprise Agreement 2020. This application arose under the Fair Work Act 2009, where the Commission was tasked with determining whether the agreement met the criteria for a modern award, specifically whether it provided for fair and reasonable terms and conditions, including minimum rates of pay. The dispute centred on whether the proposed agreement sufficiently complied with the legislative standards for modern awards and whether it addressed the needs and rights of employees appropriately.

The primary legal issue for the Commission to address was whether the proposed agreement constituted a modern award, as defined by the Fair Work Act. This required an analysis of whether the agreement adequately covered the terms and conditions of employment, including minimum wage rates, leave entitlements, penalty rates, and other employment-related matters. The Commission also needed to consider whether the agreement provided for fair and reasonable terms and conditions, ensuring that it did not disadvantage employees and maintained a balance between the interests of employers and employees.

In reaching its decision, the Commission evaluated the provisions of the proposed agreement against the statutory requirements for a modern award. The Commission found that the agreement contained comprehensive provisions that covered all necessary terms and conditions of employment. The agreement was deemed to provide fair and reasonable terms and conditions, as it aligned with the principles of the Fair Work Act and did not disadvantage employees. The Commission further determined that the agreement was in the best interests of the employees and the employer, as it provided a clear framework for employment relations within the Alpine Shire Council.

As a result, the Fair Work Commission approved the Alpine Shire Council Enterprise Agreement 2020, affirming its compliance with the legislative requirements for a modern award. This decision ensures that the agreement will serve as a binding framework for employment terms and conditions within the Alpine Shire Council, effective from the specified commencement date.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established