Bass Coast Shire Council

[2022] FWCA 629

[2022] FWCA 629

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Bass Coast Shire Council

(AG2021/9335)

Bass Coast Shire Council Enterprise Bargaining Agreement 2021.

Local government administration
COMMISSIONER WILSON	MELBOURNE, 23 FEBRUARY 2022

Application for approval of the Bass Coast Shire Council Enterprise Agreement 2021

1. An application has been made for approval of an enterprise agreement known as the Bass Coast Shire Council Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Bass Coast Shire Council. The Agreement is a single enterprise agreement.

1. 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.

1. 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.

1. The Australian Nursing and Midwifery Federation 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) I note that the Agreement covers the organisation.

1. The Association of Professional Engineers, Scientists and Managers, 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) I note that the Agreement covers the organisation.

1. The Australian Municipal, Administrative, Clerical and Services Union (the ASU) being a bargaining representative for the Agreement, on 17 January 2022 filed an F18 with the Commission giving notice that it did not want to advise the Commission whether it supported or opposed approval of the Agreement and identifying a number of concerns which the ASU held in relation to the Agreement’s departures from the Victorian Local Government Award 2015 [MA000132] (the Award), on the six matters below, against which is indicated the Council’s response and the Commission's conclusion

·  Clause 7.3.2 of the Agreement provides for a subsequent meal allowance of $13.11. Clause 15.1(b) of the Award provides that where the employer requires the employee to continue working a further four hours of continuous overtime work the allowance is $16.53. The ASU sought an undertaking which would apply the Award rate and objected to the Applicant’s failure to identify this in the F17 as a detriment to workers under the Agreement.  The Council argues there is no failure of the BOOT on this matter since the initial meal allowance is more generous than the Award as well as providing Undertaking 1 (see below) dealing with payment of an allowance for a third and subsequent meal break.  The Commission accepts the submission as well as the undertaking as satisfying any concern this aspect of the Agreement may not pass the BOOT.

·  Clause 7.3.4.6 of the Agreement does not define an amount for the First Aid Allowance. The ASU sought an undertaking which would apply the first aid allowance amount specified in the Award at Clause 15.8 and objected to the Applicant’s failure to identify this in the F17 as a detriment to workers under the Agreement.  The Council deals with this matter through Undertaking 2, which the Commission accepts satisfies the ASU’s identified concern.

·  Clause 7.3.2 and 9.12 of the Agreement provide an On Call Allowance of $146.50 per week. Clause 22.6 of the Award provides an On Call Allowance of $201.19 per week. The ASU sought an undertaking which would apply the Award rate and objected to the Applicant’s failure to identify this in the F17 as a detriment to workers under the Agreement.  The Council distinguishes the Agreement’s On Call Allowance from that provided in the Award, and argues the Agreement’s Availability Allowance and Standby Allowance are more generous than the equivalent Award entitlement.  The Commission accepts the submission as satisfying any concern this aspect of the Agreement may not pass the BOOT.

·  Clause 7.3.4.2 of the Agreement provides an Industry Allowance of $29.30 a week. This is acknowledged by both the ASU and the Applicant to be less than the Industry Allowance provided under the Award, with the Applicant’s position being that the higher base rates of pay under the Agreement are sufficient to compensate for this discrepancy. While in agreement on this point, the ASU objected to the Applicant’s failure to provide in their F17 a breakdown of the rates to be paid under this allowance according to the relative level of working conditions. The ASU sought either an undertaking applying the Award rate or the provision of such a breakdown of rates. The Council distinguishes the Agreement’s Industry Allowance from that provided in the Award, and argues payment of the allowance on a weekly basis is an improvement on the Award provision, which is paid hourly. The Commission accepts the submission as satisfying any concern this aspect of the Agreement may not pass the BOOT.

·  Clause 9.1 of the Agreement provides an ordinary span of hours of 7AM to 7PM whereas Clause 19.3 of the Award provides an ordinary span of hours of 6AM to 6PM, with Clause 21.1 providing 20% loading for weekday work outside those hours. The ASU sought an undertaking to apply the Award loading for all work performed outside of the specified weekday spread and objected to the Applicant’s failure to identify this in the F17 as a relevant detriment to workers which would take effect under the Agreement.  The Council submits the variation of hours is “neutral” as well as putting forward that hourly rates under the Agreement are “more than 20% above the equivalent relevant Award rates at all levels”, a matter which is verified by the Commission’s own analysis.  Consideration of the Agreement as a whole leads the Commission to conclude this aspect of the Agreement passes the BOOT.

·  Clauses 9.1.8 and 9.1.9 of the Agreement do not define a spread of hours for employees other than physical or community services employees engaged in community services or recreations centres. Clause 19.3(a)(iii) of the Award defines a spread of hours of 5AM to 10PM for these employees. The ASU sought an undertaking to apply this Award spread of hours and objected to the Applicant’s failure to identify this in the F17 as a relevant detriment to workers which would take effect under the Agreement. The Council deals with this matter through Undertaking 3, which the Commission accepts satisfies the ASU’s identified concern.

1. The ASU further identified Clause 13.3.4(b) of the Agreement as being of detriment to employees and objected to the Applicant’s failure to identify this in the F17 as a detriment to workers under the Agreement. The ASU argued that this clause, which states that in the case of abandonment of employment termination will “operate as from the date of the last attendance at work or the last day’s absence in respect of which consent was granted,” was, in accordance with the Full Bench judgement in Boguslaw Bienias v Iplex Pipelines Australia Pty Limited t/a Iplex Pipelines Australia[2017] FWCFB 38, impermissible as in cases of abandonment of employment it made the termination date retrospective from the last date of attendance. The ASU sought an undertaking which removed Clause 13.3.4(b) from the Agreement so that in instances of abandonment the termination notice period would apply. The Council deals with this matter through Undertaking 4, which the Commission accepts satisfies the ASU’s identified concern.

1. On 4 February 2022 my Chambers indicated to the parties that I had reviewed the concerns raised by the ASU and all parties were invited to provide responses, including submissions or undertakings if required, in response to these concerns by no later than 4PM 10 February 2022. If the responses provided satisfied the Commission’s concerns the parties would be advised and any objectors given an opportunity to be heard before determination of the application. The correspondence further indicated that I shared the ASU’s concerns in respect of the span of hours in Clause 9.1.11 of the Agreement.

1. On 9 February 2022 the Applicant provided a written response to the concerns raised and an undertaking addressing the issues of meal allowances, first aid allowances, span of hours and notice in instances of abandonment of employment. No further submissions were provided by the ASU.

1. On 22 February 2022 my Chambers requested that bargaining representatives provide any views they might have on the proposed undertakings by 4PM 23 February 2022. No response was provided by the ASU or any other bargaining representative.

1. On the basis of the foregoing I am satisfied that the Agreement passes the Better Off Overall Test and is capable of being approved.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 2 March 2022. The nominal expiry date of the Agreement is 30 September 2024.

COMMISSIONER

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Annexure A