Australian Capital Territory T/A ACT Public Sector
[2020] FWCA 3820
•27 JULY 2020
| [2020] FWCA 3820 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Australian Capital Territory T/A ACT Public Sector
(AG2020/1926)
ACT PUBLIC SECTOR ACT FIRE & RESCUE ENTERPRISE AGREEMENT 2020-2024
State and Territory government administration | |
COMMISSIONER PLATT | ADELAIDE, 27 JULY 2020 |
Application for approval of the ACT Public Sector ACT Fire & Rescue Enterprise Agreement 2020-2024.
[1] An application has been made for approval of an enterprise agreement known as the ACT Public Sector ACT Fire & Rescue Enterprise Agreement 2020-2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Australian Capital Territory T/A ACT Public Sector (the Applicant). The Agreement is a single enterprise agreement. At the same time as making the s.185 application, the Applicant has made a s.217 application to vary the Agreement to remove an ambiguity or uncertainty.
[2] The matter concerning both applications was allocated to my Chambers on 17 July 2020.
[3] The following issues were identified with the Agreement:
• Clause B5 (Notice of Termination) does not provide 1 weeks’ notice prior to termination.
• Clause J1 (Personal/Carer’s Leave) and J4 (Annual Leave) is expressed in hours rather than days.
• The Agreement does not provide a definition of Shiftworker. However, clause D2 and Annexure of the Agreement appears to provide for shiftwork.
[4] A National Employment Standards (NES) precedence clause is included in clause A4.4 of the Agreement which provides as follows:
“This Agreement will be read and interpreted in conjunction with the National Employment Standards (NES). Where there is inconsistency between this Agreement and the NES, and the NES provides greater benefit, the NES provision will apply to the extent of the inconsistency.”
[5] The Applicant has also submitted an undertaking in the required form dated 24 July 2020. The undertaking deals with the following topic:
● The Agreement will be read and interpreted in conjunction with the National Employment Standards (NES) and despite the annual leave entitlements in clause J4 of the Agreement being expressed in hours, the provisions will be applied in a manner that ensures that employees will receive a minimum of four weeks’ annual leave and shift workers will receive a minimum of five weeks’ annual leave for each full year worked.
[6] I am satisfied that the above issues identified at paragraph [3] are remedied by the NES precedence clause and the Undertaking provided.
[7] 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.
[8] The United Firefighters’ Union of Australia, 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) of the Act I note that the Agreement covers this organisation.
[9] 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.
[10] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 31 May 2024. A copy of the original Agreement, as voted on, is retained in the Commission’s records.
[11] I now move to the s.217 application to vary the Agreement to remove an ambiguity or uncertainty.
[12] The form F1 application lists the following ambiguities or uncertainties:
“1. The ACT Public Sector seeks to address the following list of ambiguities or uncertainties within the ACT Public Sector ACT Fire and Rescue Enterprise Agreement 2020-2024.
2. At clause S4.10 amend abbreviated title from “ACTFR” to “ACTF&R”
3. At clause P5.7.6 amend abbreviated title from “ACF&R” to “ACTF&R”
4. At clause P3.6.2. amend reference error from “Error! Reference source not found” to “P3.5.1”
5. At clause P12.7.1 amend qualification title “Certificate IV in personal training” (no such qualification) to “Certificate IV in Fitness (or equivalent)”
6. At clause H1.4 amend “eye sight testingand” to include a space between testing and and (sic) to “eye sight testing and”
7. At Clause J4.12 amend “subclause J4.10for” to include a space between J4.10 and for to “subclause J4.10 for”
8. At Clause P5.2 amend “ACTF&R 's” to remove a space between ACTF&R and 's to “ACTF&R's”
9. At Clause P5.3 amend “outlined inP5.2” to include a space between in & P5.2 to “outlined in P5.2”
10. At Clause P5.7.10 amend “clauseP9” to include a space between clause and P9 to ““clause P9”
11. At Clause B5.2 amend “Where a employee” to “Where an employee”
12. At Clause J1.28 amend “A employee” to “An employee”
13. At Annex C - Expense, Disability and Skills Related Allowances, Notes 1.2, amend “An employee while providing instruction in a specialised qualification shall receive the instructors allowance and the relevant specialised qualification allowance.” to remove the word specialised as follows “An employee while providing instruction in a specialised qualification shall receive the instructors allowance and the relevant specialised qualification or technical skills allowance.”
14. At Annex C - Expense, Disability and Skills Related Allowances, 2. Payment of Allowances 1.9, amend “Payable to a relevantly qualified employee who is: a. rostered at Fyshwick Fire Station and carries out the required daily inspection of USAR equipment at TOSS; b. called in to assist at Fyshwick Fire Station and carries out the required daily inspection of USAR equipment at TOSS” to capture the name change of TOSS to Specialised Operations as follows “Payable to a relevantly qualified employee who is: a. rostered at Fyshwick Fire Station and carries out the required daily inspection of USAR equipment at Specialised Operations; b. called in to assist at Fyshwick Fire Station and carries out the required daily inspection of USAR equipment at Specialised Operations”
15. At Clause S4.4 amend spelling error “parctical” to “practical”
16. At Clause A10.2.3 amend “Subclause A10.2.1either” to include a space between A10.2.1 and either as follows “Subclause A10.2.1 either”
17. At Clause A10.2.7 amend “Subclause A10.2.6must” to include a space between A10.2.6 and must as follows “Subclause A10.2.6 must”
18. At C2 heading amend “C2 - Common principles for the recruitment.” To remove the full stop at the end as follows “C2 - Common principles for the recruitment”
19. At Clause S7.13 amend “in clauseP3 -.” To include a space between clause and P3 as follows “in clause P3””
[13] On 21 July 2020, the United Firefighters’ Union of Australia advised that it agreed to the s.217 application to remove ambiguities and uncertainties.
[14] The Agreement is varied in accordance with the form F1 application made under s.217 of the Act. The varied Agreement will be published and will operate from 7 days after the date of this decision.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
<AE508560 PR721156>
0
0
0