Brimbank City Council

[2025] FWCA 2923

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Brimbank City Council

(AG2025/1919)

BRIMBANK CITY COUNCIL ENTERPRISE AGREEMENT 10, 2025, EAX

Local government administration
COMMISSIONER YILMAZ	MELBOURNE, 29 AUGUST 2025

Application for approval of the Brimbank City Council Enterprise Agreement 10, 2025, EAX

An application has been made for approval of an enterprise agreement known as the Brimbank City Council Enterprise Agreement 10, 2025, EAX (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Brimbank City Council (the Employer or Brimbank). The Agreement is a single enterprise agreement.

The union objections

Upon review of the application, it was apparent that no union participated in the bargaining process. Nevertheless, clause 3 of the Agreement refers to the Australian Municipal, Administrative, Clerical and Services Union (ASU), Australian Nursing and Midwifery Federation (ANMF) and the Association of Professional Engineers, Scientists and Managers, Australia (APESMA) as parties bound by the Agreement. Subsequently form F18s were filed from each of the unions seeking coverage under the Agreement. The ASU and APESMA in support, raised a number of objections to the approval of the Agreement: whether the Commission can be satisfied of genuine agreement by employees covered by the Agreement and that ineligible employees participated in the vote which questions if the Agreement was made with a valid majority of votes. Directions were issued and a hearing was scheduled for 1 August 2025.

The ASU as lead objector submits that at the time of the vote there were 1412 eligible voters and of these employees 563 voted to approve the Agreement from among 1070 that cast a valid vote. It submits that while this represents majority support, it is a slim majority, and it is relevant when considering the objections raised.

The ASU contends that the Commission cannot be satisfied that the Agreement has been genuinely agreed to by employees covered by the Agreement. In this respect it submits that the Brimbank did not comply with s.180(5) of the Act and statement of principles which requires the Brimbank to take all reasonable steps to ensure that the terms and effect of those terms are explained to employees.

In this regard, the ASU submit that the Commission cannot be satisfied that the following amendments to the Agreement and their circumstances were appropriately explained, and therefore the Agreement was not genuinely agreed:

Appendix A1, item 1.2 extension to the span of hours on Saturdays for Traffic & Local Laws Officers from 9.00am - 1.00pm to 9.00am - 5.00pm.
Appendix A3 clause 5.2.1 an entitlement to a 10-minute paid break after 3.5 hours instead of from 3 hours for swim teachers.
Brimbank report that 192 of the employees covered by the Agreement are from non-English speaking backgrounds and there are insufficient materials to describe the actions taken to address the needs of this group of employees and to satisfy the Commission.

In addition, the ASU contend that the voting period was infected with a misrepresentation[1] calling into question genuine agreement of the Brimbank offer, when on the final day of the voting period (6 June), Brimbank sent a text message to employees which provides the following allegedly misleading message:

Vote YES to secure your guaranteed 4% pay rise next month Please call 1300 ****** or go to to vote YES

The ASU further contend that while Brimbank notified employees of the time and method of the vote, it erred when it included casual employees in the vote that were ineligible to vote consistent with the requirements of s.181(1) of the Act.

The Employer’s response to the objections

Brimbank submit that the pre-approval conditions in ss 186 and 187 of the Act have been met and the Commission can approve the Agreement because it can be satisfied that the Agreement was genuinely agreed. Brimbank submit that the ASU’s ‘criticisms expect a higher standard of evidence of the steps taken to explain the Agreement than required by the Act.’[2]

The Employer submits that its steps were reasonable and comprehensive to explain the Agreement. In particular it submits that:

1.    The change proposed for Traffic and Local Laws Officers was at the request of the relevant employee bargaining representatives that sought more flexibility as to when they work their four-hour shift on a Saturday. It submits that the ASU contends that the Employer intended to add a Saturday afternoon shift to avoid paying overtime and this contention is incorrect. The Employer is prepared to provide an undertaking if required.
2.    The change to the 10-minute break for swim teachers was at the request of the relevant group of employees. To clarify the entitlement, the Employer has offered to provide an undertaking.
3.    The Employer is not required to give further evidence or a verbatim account of what was said at a workshop for the school crossing supervisors identified as being from a Non-English speaking background.[3] Despite this Mr La Riccia[4] gave further evidence in his witness statement of the PowerPoint presentation, that three staff from culturally and linguistically diverse backgrounds proficiently covering the range of languages spoken by the group of employees were on hand, that the employees sufficiently understood English and did not avail themselves of additional language supports.
4.    On the final day of the vote the Employer sent a text message to some 50 employees which the ASU submit is misleading and infected the vote. The Employer contends that the message is not so misleading because the Agreement provides for a wage increase from 1 July 2025 regardless of the date of approval of the Agreement and the circumstances can be distinguished from the authority[5] relied on by the ASU. It further submits that the text message ought to be considered in the context of the circumstances, including the limited distribution of the text.

The Employer submits in relation to the final objection that 43 casual employees voted but did not work during the “access period”. There is no evidence that any eligible employees were omitted from the vote. Consistent with the authority of Kmart Australia[6] the erroneous inclusion of 43 ineligible employees does not affect genuine agreement or the making of the Agreement. If the 43 ineligible employees voted for the Agreement and they are excluded from the 563 that voted for the Agreement, the Agreement was still made with majority support and in accordance with s.182(1).

Consideration

Section 180 of the Act relevantly provides:

“180 Certain pre‑approval requirements

Pre‑approval requirements

(1) Before an employer requests under subsection 181(1) that employees approve a proposed enterprise agreement by voting for the agreement, the employer must comply with the requirements set out in this section.

Employees must be given copy of disclosure documents etc.

(4A) If an organisation gives the employer a document under section 179 before the voting process referred to in subsection 181(1) starts for the agreement, the employer must take all reasonable steps to ensure that the employees employed at the time who will be covered by the agreement:
(a) are given a copy of the document as soon as practicable after it was given to the employer; or

(b) are given access to a copy of the document as soon as practicable after it was given to the employer and have access to that copy until the voting process starts.

Note: This subsection is a civil remedy provision (see Part 4‑1).

(4B)     If the employer is required to prepare a document under section 179A, the employer must take all reasonable steps to ensure that the employees employed at the time who will be covered by the agreement:
(a)       are given a copy of the document a reasonable time before the voting process referred to in subsection 181(1) starts for the agreement; or
(b)       are given access to a copy of the document a reasonable time before the voting process starts and have access to that copy until the voting process starts.

Note: This subsection is a civil remedy provision (see Part 4‑1).

(4C) The employer must not knowingly or recklessly make a false or misleading representation in the document that employees are given a copy of or access to under subsection (4B).
Note: This subsection is a civil remedy provision (see Part 4‑1).

Terms of the agreement must be explained to employees etc.

(5) The employer must take all reasonable steps to ensure that:
(a) the terms of the agreement, and the effect of those terms, are explained to the employees employed at the time who will be covered by the agreement; and

(b) the explanation is provided in an appropriate manner taking into account the particular circumstances and needs of those employees.

(6) Without limiting paragraph (5)(b), the following are examples of the kinds of employees whose circumstances and needs are to be taken into account for the purposes of complying with that paragraph:

(a)       employees from culturally and linguistically diverse backgrounds;
(b)       young employees;
(c)       employees who did not have a bargaining representative for the agreement.”

Genuine agreement is a pre-approval requirement under s.180(5) of the Act that requires the Employer to take all reasonable steps to ensure that the terms of the agreement are explained to employees employed at the time who will be covered by the Agreement[7] and that the explanation is provided in an appropriate manner taking into account the particular circumstances and needs of the employees.[8] Section 182(1) provides that an agreement is made when the employees of the employer to be covered by the Agreement are asked to approve the Agreement under s.181(1) and a majority of those that cast a valid vote approve the agreement. Section 182 of the Act follows:

“182      When an enterprise agreement is made
Single enterprise agreement that is not a greenfields agreement
(1)       If the employees of the employer, or each employer, that will be covered by a proposed single enterprise agreement that is not a greenfields agreement have been asked to approve the agreement under subsection 181(1), the agreement is made when a majority of those employees who cast a valid vote approve the agreement.
Multi enterprise agreement that is not a greenfields agreement
(2)       If:

(a)       a proposed enterprise agreement is a multi enterprise agreement; and
(b)       the employees of each of the employers that will be covered by the agreement have been asked to approve the agreement under subsection 181(1); and
(c)       those employees have voted on whether or not to approve the agreement; and
(d)       a majority of the employees of at least one of those employers who cast a valid vote have approved the agreement;

the agreement is made immediately after the end of the voting process referred to in subsection 181(1).

Section 186(2)(a) provides that the Commission must approve an agreement if satisfied the agreement has been genuinely agreed to by the employees covered by the Agreement, and section 188 sets out the test as to whether employees have genuinely agreed relevant to s.186(2) of the Act and the statement of principles (SoP).

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022[9] introduced a number of changes; one being the requirement for the Commission to develop SoPs to be taken into account when determining whether it is satisfied of genuine agreement. In turn, s.188 was replaced with a new s.188. In addition, s.180(4) dealing with the access period was repealed. Section 180(4) defined the access period as the 7-day period ending immediately before the start of the voting process. The Explanatory Memorandum at [701] and [721] states:

“The intention is to simplify the preapproval requirements, while retaining sufficient safeguards for employees. This would encourage enterprise bargaining and also stop the FWC from having to refuse to approve enterprise agreements because of minor technical or procedural deficiencies that did not affect how employees voted on the agreement.”
In relation to the new s.188 it is intended: “to provide a more suitable, principles based approach to protecting employees’ rights to participate in genuine collective bargaining in good faith, rather than the current rigid, rules based approach.”

In relation to SoP 4, the ‘employer should provide employees with a reasonable opportunity to consider a proposed enterprise agreement before voting on it, so that the employees can vote in an informed manner.” While the meaning of access period in s.180(4) was repealed, SoP 4 to 7 relate to a reasonable opportunity to consider the proposed agreement before voting on it, that a copy of the agreement and other relevant materials are provided within a reasonable time that the period is at least seven full calendar days or other reasonable time period before voting starts and that employees have had access to the materials.

The objections

The ASU with support of APESMA submit that the Commission cannot be satisfied of genuine agreement in respect to Appendix A1, item 1.2 extension to the span of hours on Saturdays for Traffic & Local Laws Officers from 9.00am - 1.00pm to 9.00am - 5.00pm. The ASU tendered into evidence a witness statement by Danny Tran, a Law Enforcement Officer employed by the Employer. Mr Tran states that he was unaware of the agreed “claim” to extend the span of hours on Saturday until 5pm. He further states that on 18 June 2025, following the completion of the voting process for the Agreement, he and other team members were informed by the Coordinator of City Compliance in a team meeting that now there will be a morning and afternoon shift on Saturdays. The ASU further submit that the Frequently Asked Questions distributed to employees during bargaining emphasises that there is no removal of employee entitlements and there is no mention of the proposal to extend the span of hours.

The Employer tendered into evidence a witness statement from Matthew La Riccia, Employee Services Coordinator, and on this point, he states that Traffic and Local Laws Officers are paid an annualised loading to work 16 rostered Saturdays per year. During bargaining he says that through the Coordinator, employees requested greater flexibility to work across a greater spread to allow for family commitments. In Brimbank’s submissions they affirm that it is not the intent to add a Saturday afternoon shift to avoid overtime penalty rates and offered an undertaking accordingly.

Having considered the submissions and evidence I am satisfied that the proposal to extend the span of hours on Saturday to 5pm ought to be reverted to the existing Agreement clause. The Employer has provided an undertaking to this effect. The Employer did not tender corroborating evidence in support of its witness statement that the proposal was in response to requests from employees, nor did it tender any evidence to contest Mr Tran’s statement that it was the Coordinator that informed the team that employees will be required to work an afternoon shift following conclusion of the voting process. It is not contested that there were numerous roadshows, regular bulletins from the CEO and information provided on the intranet, including access to a copy of the Agreement with track changes to show the proposed changes. This material satisfies that the content was explained and enough information given to employees to make an informed decision. The uncontested evidence of Mr Tran raises questions whether there may be confusion over the proposed change. The test for the Employer is that they take reasonable steps (s.180(5)) and this does not mean absolute steps.

The Employer asserts that the proposal was not intended to deny overtime entitlements on a Saturday but instead was intended to allow for flexibility where required. Therefore, in the circumstances and absent any protections to avoid misunderstanding of the clause, the undertaking to revert the proposal is a practical result. However, the ASU submit that an undertaking cannot rectify either the proposed change for the Saturday shift or the break after 3.5 hours for swim teachers. It submits that the proposals were explained as flexibilities when they were not and an undertaking cannot rectify an inducement to vote for the Agreement. Based on the evidence, the proposed clauses are hardly an inducement for a yes vote, as reverting the clause which already contains sufficient flexibility has no detrimental effect on employees. I observe that the undertaking is not a BOOT issue, but rather a solution to avoid confusion over the original intent for the proposed clause. I am satisfied that I may use my discretion to accept an undertaking to address the concern raised under s.186 of the Act.

The proposal in Appendix A3 clause 5.2.1 relating to a 10-minute paid break entitlement for swim teachers was also challenged by the ASU. On this matter, evidence of the proposal by an employee and explanation was evident in the Frequently Asked Questions as far back as 1 April 2025. The ASU contends that the amendment was not adequately explained and the amendment in effect denies a 10-minute break between 3.00 and 3.5 hours of the shift. The Employer agrees to provide an undertaking to revert the amendment if the Commission has concerns. As the Employer did not intend to deny the taking of the break until 3.5 hours are worked and the clause prior to the amendment allowed flexibility in taking the break, the undertaking removes any ambiguity whether the break can be taken after 3 hours of work. Similarly to the above issue, I am satisfied that the Brimbank took all reasonable steps to explain the Agreement. This concern can also be rectified with an undertaking pursuant to s.186 of the Act.

In terms of the 192 employees identified as being from non-English speaking backgrounds, the ASU contends that there is insufficient information for the Commission to be satisfied that all reasonable steps had been taken. The form F17 declaration and the evidence of Mr La Riccia confirms that there was one dedicated workshop arranged for school crossing staff where these culturally and linguistically diverse staff are employed albeit after voting commenced. Mr La Riccia in his statement explained that a workshop was arranged on 28 May 2025 to explain the Agreement. In attendance in the meeting there were multilingual staff to translate, where required. He states that the employees present understood English and did not take advantage of the additional language support. He further states that this group had access to extensive information including the workshops prior to the commencement of the vote. No request for translation services was requested from the staff of non-English speaking backgrounds. There is no evidence of staff language requirements not being met, nor any evidence of difficulty requiring translation services. There is no evidence to raise any concern that all reasonable steps had not been taken to ensure explanation in an appropriate manner for those employees from non-English speaking backgrounds, nor evidence that their language skills were so limited requiring support. Mr La Riccia informed the Commission that the staff understood English. I am satisfied that reasonable steps had been taken.

The Employer declares there were 395 casuals employed. Information was requested from my Chambers of Brimbank to confirm that those casuals that voted were eligible to vote. The ASU presented two witness statements[10] from casual employees not “employed” during the period previously referred to as the ‘access period’.[11] One witness advised that the last shift worked was on 16 March 2025, while the second witness states that she worked on 11 May 2025 but because she was in a bridal party she did not work until 24 May 2025. Both witnesses state that they received voting materials and cast a vote while ineligible to vote. During proceedings it was stated that both voted against the Agreement.

The Employer was asked to consider Kmart[12] as the authority to advise whether the casuals “employed” were eligible to vote. Even with the amendments to the Act, Kmart serves to guide the approach in considering when casual employees are eligible to vote. Firstly, s.180 (1) stipulates that ‘before an employer requests under subsection 181(1) that employees approve a proposed enterprise agreement by voting for the agreement, the employer must comply with the requirements set out in this section.’ Section 180 concerns explanation and giving access to the agreement and related materials, among other obligations. The language used in s.180 relating to the pre-approval requirements (before the request to vote) is “employees employed at the time who will be covered by the agreement,” and ‘Section 181 using the same language concerns the request that employees vote in relation to the agreement. Despite repealing subsections 180 (2), (3) and (4) of the Act, at the time is the relevant time period where the Employer is required to take reasonable steps to explain the agreement among other obligations, previously referred to as the “access period.” The SoP 4 – 7 now deal with the reasonable opportunity to consider a proposed enterprise agreement before voting on it. These principles deal with a reasonable time period for employees to consider the materials before voting starts. In addition, the cohort of casual employees eligible to vote must be “employed,” or engaged at the time as determined in NTEIU v Swinburne.[13]

Brimbank states that its workforce consists of casuals engaged as required but also on a more continuous basis, such as the ASU’s witness Ms Tsardakis that had been employed in various capacities since 2010 and in the last three years as a regular casual. Ms Tsardakis was not engaged during the former access period simply because she was in a bridal party and was unable to complete her regular shift. The Employer contends that Ms Tsardakis was eligible to vote. While a casual employed at the time was dealt with in NTEIU v Swinburne, the Bench did not resolve the discordant decisions on the meaning of when a casual is employed. On that basis the decision of McDermott v AWU & AMWU[14] and Monadelphous Engineering[15] are relevant to this matter in terms of the question whether the casual with firm commitment to ongoing work or engaged in continuous patterns of work were eligible to vote, it is for this reason that the Employer asserts that the 46 casuals are not necessarily ineligible to vote.

In addition, Brimbank engages casuals for sessional periods. The definition in Appendix A3 in 1.3.2 is ‘an employee who is not a permanent employee and is employed to work regular rostered programs or sessions on a defined contractual basis for a term or period.’ Mr La Riccia in his supplementary statement in answer to the ASU question on sessional employees provided records of the sessional employees engaged together with their shift patterns to demonstrate regularity. Mr La Riccia also confirmed through CorpVote that three did not work in the former access period but had voted. The Employer points out that both casual employees and sessional casuals that the ASU submit ought to be deducted from the total vote in favour is mistaken because the 46 casuals and three sessional employees are improperly assumed to be ineligible to vote

The ASU in their objection point out that Brimbank provided materials showing casuals paid during the former access period, but its supporting documentation did not show how many casuals were “employed” at the time. Based on further materials tendered by Brimbank, the ASU deduced that of the 343 casuals invited to vote and paid during the relevant time, only 317 actually worked. However, the Employer subsequently submitted that instead of 17 casuals that may have been ineligible to vote, there were 46 based on the assumption that the period previously referred to as the access period is the relevant time period that a casual was “employed”. The Employer submits that even with the exclusion of 46[GC1] from the final number of votes, that the Agreement was made by majority vote pursuant to s.182(1) of the Act. The Employer confirmed that three sessional casuals “on leave” from their regular rostered programs or sessions did not work but voted were also eligible. Even if the three are deducted from the final vote, there is still a majority, even though the Employer contends that they ought not be excluded from the final majority vote in favour. Importantly, the exclusion of the 46 casuals and 3 sessional employees may not be accurate because their absence in that time period may not mean they were not employed and there is no information as to how many of the casuals voted against the Agreement other than the two who voted no as submitted by the ASU.[16] The Employer further questions whether with the amendments made to the Act, that the construction of sections 180 and 181 is as contended by the ASU, nevertheless it submits that it is unnecessary to conclude the point because even with this error there was majority support for the Agreement.

Brimbank asserts that the error as described by the ASU does not mean that the Agreement was not genuinely agreed. I agree.[17] Such an error is not fatal to the overall result. Without knowing what number of the 46 should be discounted, even if 46 or 49 is deducted from the 563 that voted in favour of the Agreement, a majority still stands consistent with the requirement of s.182(1) of the Act.

The final ASU objection was the text message that the Employer sent to about 50 employees on the final day - two hours before the closure of the vote. The ASU submits that the text was misleading and infected the vote consistent with the authority in National Tertiary Education Industry Union v Southern Cross University (Southern Cross).[18] The Employer disputes that the text was misleading and infected the vote because the Agreement provides for the wage increase from the first pay period from 1 July 2025 regardless of when the Agreement is approved. It further submits that the circumstances can be distinguished from the authority.

The Full Bench in Southern Cross determined that the errors arising from the numerous messages meant the agreement was not genuinely agreed and the errors could not be cured by undertakings. The Applicant in Southern Cross issued a number of communications before and during the voting period which were found that the statements were misleading to state that the sign on bonus was payable upon endorsement of the Agreement by a majority of staff, whereas the Agreement provided for a sign on bonus upon approval by the Commission. The Full Bench further found the statements misleading over time and particularly in regard to the application of the offer to casual employees.

In considering whether misleading statements means the agreement cannot be genuinely agreed, the Full Bench determined:

“we agree with the First Respondent that the fact that a misrepresentation is made in the course of an access or voting period does not, of itself, mean that the Agreement was not genuinely agreed. The issue which determines the question is whether, in the words of the Full Bench in Appeal by Australian, Municipal, Administrative, Clerical and Services Union;
“it could reasonably be expected to have the effect of deceiving those employees into voting for something which, if they had known the true position, they would not have voted for.”[19]

The test to be applied in such circumstances “is whether the evidence taken as a whole, when considered objectively, leads to such a conclusion.”[20] The evidence of Mr La Riccia was that the text was sent to 50 employees once, to a cohort of employees with a lower voting rate (those employed in Roads Services, the Keilor Golf Course and Bowry Theatre) and was sent two hours before the vote closed. The ASU submits that the message was misleading because it implies that the pay increase applies from a set date and is guaranteed. It further contends that the message suggests the increase applies to a single employee regardless of the outcome of the vote.

The circumstances in this matter are relevant. Firstly, while ill-considered to send such messages during the voting process, the text was sent once only to a small select group two hours before closure of the vote. The text encourages a yes vote to secure the 4% wage increase from July and refers recipients to the CorpVote process. Further, the text is consistent with clause 4.2 of the Agreement, where it is clear that the wage adjustment applies from the first full pay period commencing on or after 1 July 2025 and will be payable after approval by the Commission. This means on approval, the entitlement is applicable to all employees covered by the Agreement, regardless of whether they leave their employ before approval of the Agreement. Secondly, the voting process followed a comprehensive period of explanation with approximately 15 workshops run throughout the organisation explaining the changes and the offer. In addition, power point presentations were available together with a range of other materials to inform staff of the process and the offer on the intranet page. Thirdly, the Agreement subject to vote was the tenth single enterprise agreement covering employees of the Council. It has a long history of bargaining and coverage under an enterprise agreement, the vast majority of employees are familiar with the process. Fourthly, the proposed Agreement, like previous agreements covers all employees except Senior Executive Officers and Senior Officers with 1412 employees eligible to vote and casuals making up 27% of the vote, the vast majority of employees engaged weekly. Fifthly, the NERR was issued in late November 2024 and soon after, employees engaged in bargaining by nominating individual employee bargaining representatives. Sixthly, a dedicated EAX intranet page was set up to keep employees informed of the bargaining process and the issues discussed. This intranet page together with materials disseminated through various forums was clear that the agreement will come into effect after approval by the Commission and wage adjustments in accordance with the dates stipulated in the Agreement. This consistent messaging was evident since 28 January 2025.[21] Seventhly, the utilisation of CorpVote to conduct the vote reiterated the method and processes therefore the text message in that context cannot be considered misleading. Lastly, the CEO made clear to employees the term in the Agreement that regardless of when the Agreement is approved and if supported by a majority yes vote, the pay increase will apply from the first full pay period from 1 July 2025.

For the above reasons I cannot conclude that the text could reasonably expect to have the effect of inducing a vote in favour in circumstances that otherwise employees would not vote for the Agreement. The evidence as a whole does not lead to the conclusion that employees were deceived to vote for the Agreement, or that it was not genuinely agreed. In fact, the result demonstrates that employees exercised their democratic right to vote and engaged in the process as there was a significant no vote. Nonetheless, a majority of employees voted in support of the Agreement.

Conclusion

Having considered carefully each of the objections raised by the ASU and supported by APESMA, I do not find that they detrimentally affect the requirement that the Agreement is genuinely agreed within the meaning of ss. 186(2)(a) and 188. And where applicable and appropriate the Employer has provided undertakings to correct concerns that are not substantial changes, nor cause financial detriment but do enable approval of the Agreement.

On filing the application for approval, the Employer has raised that the Agreement contains several minor administrative errors, which are detailed in Annexure B of this decision. Brimbank has requested that these errors be corrected and has provided an updated copy of the Agreement. I am satisfied that the errors referred to in Annexure B constitute obvious drafting errors, defects, or irregularities and I will amend the Agreement accordingly pursuant to s.218A of the Act.

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, 193 and 193A as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

The Australian Municipal, Administrative, Clerical and Services Union, The Association of Professional Engineers, Scientists and Managers, Australia, and the Australian Nursing and Midwifery Federation each being a bargaining representative for the Agreement, have each 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 organisations.

The Agreement is approved and in accordance with s.54, will operate from 5 September 2025. The nominal expiry date of the Agreement is 30 June 2029.

COMMISSIONER

Annexure A

Annexure B

Page	Clause	Admin Change From	Admin Change too
8	17.3.1/2	Duplication of Clause	Remove 17.3.2
9	17.7 c	"Error! Reference source not found. Allowances" should be deleted	Leave only 'Allowances'
15	24.5/24/6	Merge these clauses, accidently split 'salary sacrifice where the FBT implications'	remove 24.6
16	25.2.5	Change in title from '25 Rosters'	to only 'Rosters'
20	30	reference from Environment Department to	Climate Emergency & Environment Department
31	50.1	Reference to “Queen’s Birthday”	replaced with “King’s Birthday”
34	59.3	Employment security Reference error, from clause 46 & 47	Should reference caluse 60 & 61
38	62.3	current reference to clause 59.1 or 59.2	should be clause 62.1 or 62.2 (due to new clauses has pushed the numbering out)
57	Appendix 2- 4.2	accrued time in lieu' is repeated	remove the first 'accrued time in lieu,' in the clause
58	Appendix 3- 2.1/2.2	Merge these clauses, accidently 'during the school term' was reyrned to the next line	remove 2.2
58	Appendix 3- 2.3	Error 'pRosterspRosters'	Replace with just 'Rosters'
63	Appendix 7 - 4.3	Start timme incorrectly reflected as 5.45am rather than agreed claim 5.30am	4.3.1 Waste collection drivers are to commence their shift at 5.30am and start by undertaking a pre-start check of their vehicle.
64	Appendix 7 - 4.5.1 (a)	Reference to “Queen’s Birthday”	replaced with “King’s Birthday”
All Appendix	Clause 1:For pay rates refer to Section _ of the Agreement, Pay Table P_	For pay rates refer to the relevant pay table so this is change proof for future EA's

[1] Relying on National Tertiary Education Industry Union v Southern Cross University, CPSU, the Community and Public Sector Union-SPSF Group[2023] FWCFB 200.

[2] Outline of submissions of Brimbank City Council at [18].

[3] Ibid at [31] – [33] and CFMEU v Mechanical Maintenance Solutions Pty Ltd [2022] FCAFC 15 at [170].

[4] Employee Services Coordinator.

[5] The Applicant’s outline of submissions at [34] – [43].

[6] Kmart Australia Limited t/a Kmart and others [2019] FWCFB 7599 at [43].

[7] Fair Work Act 2009 (Cth) s.180(5)(a).

[8] Ibid s.180(5)(b).

[9] Received Royal Assent on 6 December 2022.

[10] Hannah Slee and Adriana Tsardakis.

[11] 14 – 21 May 2025 is the period prior to the voting period after notification of the time and method of vote (on 13 May 2025), previously referred to as the access period. The vote commenced on 22 May and concluded on 6 June 2025.

[12] Kmart Australia Limited t/a Kmart and others [2019] FWCFB 7599.

[13] National Tertiary Education Industry Union v Swinburne University of Technology [2015] FCAFC 98 (17 July 2015) [(2015) 232 FCR 246].

[14] McDermott v AWU & AMWU[2016] FWCFB 2222.

[15] Monadelphous Engineering [2025] FWCA 1123.

[16] The two ASU witnesses – both casuals that voted.

[17] Taking into account Kmart Australia Limited t/a Kmart and others [2019] FWCFB 7599 at [43] and the rationale for the Statement of Principles arising from the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (see paragraph 22 of this decision).

[18] National Tertiary Education Industry Union v Southern Cross University, CPSU, the Community and Public Sector Union-SPSF Group[2023] FWCFB 200.

[19] Ibid at [35] referencing Appeal by Australian, Municipal, Administrative, Clerical and Services Union [2013] FWCFB 7453 [28].

[20] Ibid at [37].

[21] Example provided in the Frequently asked questions since 28 January 2025.

Printed by authority of the Commonwealth Government Printer

[GC1]I think it should be 46 or 49 including the 3 sessional employees as per Mr Lettau submissions.

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Brimbank City Council [2025] FWCA 2923

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[2025] FWCA 2923

29 AUGUST 2025