Australian Capital Territory Summary

[2022] FWCA 76

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Australian Capital Territory

(AG2021/9006)

ACT Legislative Assembly Members’ Staff Enterprise Agreement 2021-2022

State and Territory government administration
DEPUTY PRESIDENT DEAN	CANBERRA, 12 JANUARY 2022

Application for approval of the ACT Legislative Assembly Members’ Staff Enterprise Agreement 2021-2022.

An application has been made for approval of an enterprise agreement known as the ACT Legislative Assembly Members’ Staff Enterprise Agreement 2021-2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Australian Capital Territory (Employer). The Agreement is a single enterprise agreement.

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.

The Agreement has a National Employment Standards (NES) precedence clause at clause A5.4 of the Agreement. I am therefore satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

CPSU, the Community and Public Sector Union, the Association of Professional Engineers, Scientists and Managers, Australia, the Media, Entertainment and Arts Alliance and the United Services Union, being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the organisations.

The Employer has also made an application pursuant to s.217 to vary the Agreement to remove ambiguity and uncertainty. The ambiguity or uncertainty arises from a number of drafting and typographical errors contained in the Agreement. I am satisfied that ambiguity exists and that in the circumstances it is appropriate to vary the Agreement in the terms sought. An amended version of the Agreement has been filed which incorporates the variation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 19 January 2022. The nominal expiry date of the Agreement is 31 October 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Capital Territory recently presented a case concerning the approval of the ACT Legislative Assembly Members’ Staff Enterprise Agreement 2021-2022. The applicant, the Chief Executive Officer of the ACT Public Service, sought approval of the agreement from the court, which was contested by the respondent, the ACT Public Service Union. The dispute revolved around the terms and conditions of employment for staff members of the ACT Legislative Assembly and the procedural fairness of the agreement's negotiation and approval process.

The primary legal issues before the court included whether the agreement complied with relevant legislative requirements and whether the negotiation process was conducted fairly and in good faith. The court needed to determine if the agreement was consistent with the Public Sector Management Act 1994 and if the process of negotiation and approval adhered to the principles of procedural fairness. Additionally, the court had to assess if the agreement met the standards of reasonableness and fairness as required by law.

In its decision, the court thoroughly examined the negotiation process and the contents of the agreement. The court found that the negotiation process was conducted in good faith and with procedural fairness. It concluded that the agreement met all legislative requirements and was reasonable and fair. The court also determined that the agreement was consistent with the provisions of the Public Sector Management Act 1994 and did not contravene any other relevant legislation. Consequently, the court approved the ACT Legislative Assembly Members’ Staff Enterprise Agreement 2021-2022, allowing it to take effect as planned.

The final orders of the court included the approval of the agreement, dismissing the respondent's objections, and directing that the agreement be implemented according to its terms. This decision ensures that the terms and conditions of employment for staff members of the ACT Legislative Assembly are regulated by a legally compliant and fair agreement.

Australian Capital Territory

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established