Baw Baw Shire Council Summary

[2023] FWCA 1263

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Baw Baw Shire Council

(AG2023/986)

BAW BAW SHIRE COUNCIL ENTERPRISE AGREEMENT 2022 (NO. 10)

Local government administration
COMMISSIONER LEE	MELBOURNE, 3 MAY 2023

Application for approval of the Baw Baw Shire Council Enterprise Agreement 2022 (No. 10)

An application has been made for approval of an enterprise agreement known as the Baw Baw Shire Council Enterprise Agreement 2022 (No. 10) (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Baw Baw Shire 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 Education Union, the Australian Nursing and Midwifery Federation, the Australian Municipal, Administrative, Clerical and Services Union and the Association of Professional Engineers, Scientists and Managers Australia, all 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.

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

· Clause 13.4.3 – Abandonment of Employment
· Clause 15.2.5 – Severance

However, noting clause 5 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 10 May 2023. The nominal expiry date of the Agreement is 31 December 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case involved the Baw Baw Shire Council, seeking approval for the Enterprise Agreement 2022 (No. 10). The dispute arose from the negotiation process and content of the proposed agreement, which was intended to govern the employment conditions of certain council employees. The application for approval was heard by the Fair Work Commission (FWC), which is tasked with overseeing the enforcement of workplace laws in Australia.

The primary legal issues before the Commission were whether the proposed agreement met the requirements set out in the Fair Work Act 2009, particularly whether it contained the necessary minimum terms and conditions and whether it had been fairly negotiated. The FWC had to assess if the agreement was consistent with the broader objectives of the Act, which include facilitating cooperative relationships between employers and employees and ensuring fair treatment in the workplace.

In its decision, the Commission examined the negotiation process and the terms of the proposed agreement in detail. It considered the views of both the council and the employee representatives who had participated in the negotiations. The Commission found that the agreement contained all the required minimum terms and conditions and was consistent with the objectives of the Act. Furthermore, the FWC concluded that the negotiation process was fair and that the agreement reflected a genuine attempt to reach a consensus between the parties.

As a result, the Commission approved the Baw Baw Shire Council Enterprise Agreement 2022 (No. 10), which will now govern the employment conditions of the relevant employees. This decision ensures that the agreement is legally enforceable and that both the council and the employees are bound by its terms.

Baw Baw Shire Council

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established