Boroondara City Council t/a City of Boroondara

[2021] FWCA 5006

[2021] FWCA 5006

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Boroondara City Council t/a City of Boroondara
(AG2021/6185)

BOROONDARA CITY COUNCIL ENTERPRISE AGREEMENT 2021

Local government administration
DEPUTY PRESIDENT MANSINI	MELBOURNE, 17 AUGUST 2021

Application for approval of the Boroondara City Council Enterprise Agreement 2021.

[1] Boroondara City Council has applied for approval of a single enterprise agreement known as the Boroondara City Council Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] Since the application was made, concerns were raised by and with the Commission in relation to the pre-approval requirements, whether the Agreement contravenes s.55 of the Act, contains the mandatory terms and passes the “better off overall” test. Further information was provided in relation to these concerns.

[3] The application was accompanied by a signature page that complied with Regulation 2.06A of the Fair Work Regulations 2009 (Cth) (the Regulations) but an amended signature page was subsequently filed which included additional signatories. I consider it appropriate in the circumstances to allow this correction or amendment, and do so pursuant to s.586(b).

[4] The model flexibility term prescribed by the Regulations is taken to be a term of the Agreement, pursuant to s.202(4) of the Act.

[5] In relation to whether the Agreement passes the “better off overall” test, some concerns were raised by the Commission and some matters of disagreement with the employer’s declaration relevant to the “better off overall” assessment were identified by a bargaining representative. Further information was provided, and written undertakings given in accordance with s.190 of the Act (attached at Annexure A) (Undertakings), which were either supported or not opposed by the bargaining representatives.

[6] On an analysis of the materials before the Commission, it is apparent that the Agreement includes more beneficial terms, including higher ordinary wage rates for each classification of employee and prospective employee to be covered. Less beneficial (financial and non-financial) terms have also been identified. On an overall assessment of whether employees to be covered would be better off overall under the Agreement, including with regard to the identified more beneficial and the identified less beneficial terms in the Agreement and the Undertakings and all of the submissions and materials before the Commission, I am satisfied that the Agreement passes the better off overall test.

[7] 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. Pursuant to s.201(3) of the Act, the Undertakings are taken to be terms of the Agreement. Having regard to the Undertakings, I am also satisfied that the more beneficial entitlements of the National Employment Standards in the Act (NES) will prevail where there is an inconsistency between the Agreement and the NES.

[8] On the basis of the material contained in the application, further information provided on request of the Commission and the Undertakings, 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.

[9] The Association of Professional Engineers, Scientists and Managers, Australia, the Australian Municipal, Administrative, Clerical and Services Union and the Australian Nursing and Midwifery Federation, being bargaining representatives for the Agreement, have respectively given notice under s.183 of the Act. In accordance with s.201(2) I note that the Agreement covers these organisations.

[10] The Agreement was approved on 17 August 2021 and, in accordance with s.54, will operate from 24 August 2021. The nominal expiry date of the Agreement is 30 June 2024.

DEPUTY PRESIDENT

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Annexure A