Ballarat City Council

[2024] FWCA 3269

[2024] FWCA 3269

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Ballarat City Council

(AG2024/2474)

BALLARAT CITY COUNCIL ENTERPRISE AGREEMENT NO. 9, 2023

Local government
DEPUTY PRESIDENT SLEVIN	SYDNEY, 16 SEPTEMBER 2024

Application for approval of Ballarat City Council Enterprise Agreement No. 9, 2023

1. Ballarat City Council applies for approval of an enterprise agreement known the Ballarat City Council Enterprise Agreement No. 9, 2023 (the Agreement). The application is made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement. The Commission must approve the Agreement if satisfied that the requirements in ss 186 and 187 are met.

1. A number of concerns were raised with the Council about those requirements. The Council has provided an Undertaking in relation to 4 terms in the Agreement. A copy of the Undertaking is attached. A copy of the Undertaking is attached in Annexure A to this decision.  I am satisfied that the effect of accepting the Undertaking is not likely to cause financial detriment to any employee covered by the Agreement or result in substantial changes to the Agreement. The views of each person who the Commission knows  is  a  bargaining representative for the Agreement have been sought in relation to the Undertaking. Pursuant to subsection 190(3) of the Act, I accept the Undertaking. It is taken to be a term of the Agreement

1. The Australian Municipal, Administrative, Clerical and Services Union (ASU) was a bargaining representative for the Agreement. The ASU initially objected to the approval of the Agreement on a number of grounds. Ultimately, the ASU raises one issue with the approval of the Agreement being whether the Agreement meets the requirement in s 186(2)(d) that the Commission to be satisfied that the Agreement meets the better off overall test (BOOT) in respect to Animal Shelter Employees. The issue turns on the rosters that those employees may be required to work and whether the rates in the Agreement adequately compensate employees. The specific source of concern arises from the spread of hours for the Animal Services Team in clause 2 of Schedule 5 of the Agreement. On the face of the Agreement these employees may be rostered on to work on weekends without receiving payment that meets the penalty that would otherwise apply under the Victorian Local Government Award 2015. This is so if the employees work a regular roster requiring weekend work. If the roster is regular then the employees would not be better off overall, as the wage increase provided by the Agreement would not be adequate to compensate for the loss of the weekend penalty.

1. The Council responded that the roster patterns for these employees are such that the those who work weekends receive overtime payments for such weekend work, because their rostered hours were otherwise worked Monday to Friday, and the total hours worked in the fortnight exceeded 76. The overtime payments are such that the overall payments to be made would be in excess of the payments that would be made under the Award. In reply the ASU submitted that there was nothing in the Agreement preventing the Council from deviating from the rostering practices that currently apply and if it were to do so then employees may be worse off.

1. Section 186(2)(d) requires the Commission to be satisfied that the Agreement meets the better off overall test (BOOT). The test is found in s.193 of the Act and it is to be applied in accordance with s.193A.  Under s.193 the Commission must be satisfied, as at the time the application for approval was made, that each award covered employee, and each reasonably foreseeable employee, for the Agreement would be better off overall if the Agreement applied to the employee than the relevant modern award. In applying the test, the Commission is required by s.193A to make a global assessment of whether each employee would be better off having regard to the terms of the Agreement which would be more beneficial than the award and the terms which would be less beneficial. In making that assessment, the Commission may, under s 193A (6), have regard to the patterns of work that are reasonably foreseeable at the time of the application. I am satisfied on the explanation provided by the Council that on the current and foreseeable patterns of work the relevant employees will not be worse off under the Agreement. I note that should circumstances change during the life of the Agreement the BOOT may be reconsidered pursuant to an application made under s. 227A of the Act.

1. Consequently, subject to the Undertaking, and explanations provided, I am satisfied that the BOOT, which requires that at the time of the application each award covered employee and each reasonably foreseeable employee would be better off overall if the agreement applied than the Award, is met.

1. The Agreement does not cover all of the employees of the Council, however, taking into account the factors in sections 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

1. On the basis of the material filed, the Undertaking referred to above and the explanations provided by the Council that each of the requirements of ss.186, 187 as are relevant to this application for approval have been met.

1. Australian Municipal, Administrative, Clerical and Services Union and the Association of Professional Engineers, Scientists, and Managers, Australia Independent Education Union of Australia, being bargaining representatives for the Agreement have given notice under s.183 of the Act that it wants the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the two unions.

1. The Agreement was approved on 16 September 2024 and, in accordance with s 54, will operate from 23 September 2024. The nominal expiry date of the Agreement is 30 September 2026.

DEPUTY PRESIDENT

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