Banyule City Council

[2022] FWCA 2075

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Banyule City Council

(AG2022/1663)

Banyule City Council Enterprise Agreement No. 8 2021

Local government administration
COMMISSIONER LEE	MELBOURNE, 23 JUNE 2022

Application for approval of the Banyule City Council Enterprise Agreement No. 8 2021

An application has been made for approval of an enterprise agreement known as the Banyule City Council Enterprise Agreement No. 8 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Banyule City Council. The Agreement is a single enterprise agreement.

The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement.

Subject to the undertakings referred to above, 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 Australian Municipal, Administrative, Clerical and Services Union, the Australian Nursing and Midwifery Federation and The Association of Professional Engineers, Scientists and Managers, Australia being bargaining representatives for the Agreement, have each 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.

I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

·   Clause 31.6.1 – Personal leave upon termination.
·   Clause 57.1.2 – Notice period.
·   Clause 61 and Schedule 2, Clause 7 – Abandonment of employment.

However, noting clause 3.4 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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 30 June 2022. The nominal expiry date of the Agreement is 30 June 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case involved an application by the Banyule City Council for approval of their Enterprise Agreement No. 8 2021. The application was heard by the Fair Work Commission, Australia's independent workplace relations tribunal. The applicant sought approval of the agreement which outlined the terms and conditions of employment for council staff. The application was brought under the Fair Work Act 2009, which provides the legislative framework for the approval of enterprise agreements.

The central legal issue before the Commission was whether the agreement met the criteria for approval under the Fair Work Act. Specifically, the Commission had to determine whether the agreement was in the public interest and if it complied with the "better off overall test" (BOOT), which requires that the agreement be at least as good as the applicable award or modern award. Additionally, the Commission examined if the agreement was free from any discriminatory provisions and whether the agreement allowed for a fair process for resolving disputes.

The Fair Work Commission approved the Enterprise Agreement No. 8 2021, finding it to be in the public interest and compliant with the BOOT. The Commission noted that the agreement provided for fair terms and conditions of employment, including wages and conditions that were at least as good as those provided by the applicable award. The Commission also found that the agreement contained appropriate dispute resolution mechanisms and did not include any discriminatory provisions. As the agreement met the statutory requirements, the Commission approved it under section 181 of the Fair Work Act.

The Fair Work Commission approved the Banyule City Council Enterprise Agreement No. 8 2021 and directed that it be registered. This decision confirmed the agreement as the applicable terms of employment for the council staff, effective from the date of approval.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established