DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Break O'Day Council
(AG2018/4865)

BREAK O'DAY COUNCIL ENTERPRISE AGREEMENT 2018

Local government administration
DEPUTY PRESIDENT COLMAN	MELBOURNE, 4 FEBRUARY 2019

Application for approval of the Break O'Day Council Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Break O’Day Council Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Break O’Day Council. The agreement is a single enterprise agreement.

[2] 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.

[3] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, 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.

[4] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] I observe that certain provisions of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 5.2 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.

[6] The Australian Municipal, Administrative, Clerical and Services Union 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) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

[7] The Agreement was approved on 4 February 2019 and, in accordance with s.54, will operate from 11 February 2019. The nominal expiry date of the Agreement is 30 April 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by the Break O'Day Council to approve the Break O'Day Council Enterprise Agreement 2018. The applicant sought the approval of the agreement, which was to govern the employment terms and conditions of its employees. The Commission was tasked with determining whether the agreement met the criteria for approval under the Fair Work Act 2009.

The central legal issue for the Commission was to assess if the agreement complied with the relevant provisions of the Fair Work Act, specifically whether it was a 'good faith' agreement. This required examining if the agreement was made in good faith, if it provided for fair and reasonable terms and conditions, and if it adhered to the procedural requirements set out in the Act. Additionally, the Commission had to consider if the agreement allowed for the resolution of workplace disputes in a fair and efficient manner.

In making its decision, the Commission considered the submissions from both the applicant and the respondents, and evaluated the contents of the agreement. The Commission found that the agreement was made in good faith and provided for fair and reasonable terms and conditions. It also determined that the agreement complied with the procedural requirements of the Fair Work Act and provided for the resolution of workplace disputes in a fair and efficient manner. Consequently, the Commission approved the Break O'Day Council Enterprise Agreement 2018.

The Commission ordered that the Break O'Day Council Enterprise Agreement 2018 be approved as a registered agreement under the Fair Work Act 2009. This approval ensures that the agreement will govern the employment terms and conditions of the employees covered by the agreement, providing a legal framework for their employment relationship. The decision of the Commission is final and binding, and cannot be challenged in any court or tribunal unless there is a ground for review under the Administrative Decisions (Judicial Review) Act 1977.

Break O'Day Council

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established