Cardinia Shire Council - [2024] FWCA 3617

[2024] FWCA 3617

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Cardinia Shire Council

(AG2024/3556)

CARDINIA SHIRE COUNCIL ENTERPRISE AGREEMENT 2024

Local government administration
DEPUTY PRESIDENT O’NEILL	MELBOURNE, 17 OCTOBER 2024

Application for approval of the Cardinia Shire Council Enterprise Agreement 2024

An application has been made for approval of an enterprise agreement known as the Cardinia Shire Council Enterprise Agreement 2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Cardinia Shire Council. The Agreement is a single enterprise agreement.

The Notice of Representational Rights (NERR) distributed to employees is a pre-reform version. However, I am satisfied that the Agreement would have been genuinely agreed to but for the minor technical departure from the NERR requirements under s.174 of the Act and that the employees covered by the Agreement were not likely to have been disadvantaged by this error. Accordingly, I exercise the discretion conferred by s.188(5) of the Act.

The Australian Municipal, Administrative, Clerical and Services Union (ASU), the Australian Nursing and Midwifery Federation (ANMF) and the Association of Professional Engineers, Scientists and Managers, Australia (APESMA), being the 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. The ANMF support approval of the Agreement.

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

· Clause 33(k)(i).

However, noting clause 28 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 24 October 2024. The nominal expiry date of the Agreement is 30 June 2027.

Variation

The Applicant has simultaneously sought to vary provisions of the Agreement pursuant to section 218A of the Act (the Variation).

The Applicant highlighted errors at clause 26(k) of the Agreement and now seeks for the clause to read as follows:

Plant & Tool Allowance

i.Outdoor employees whose roles require them to drive vehicles and operate plant and equipment, and to carry out routine maintenance and/ or minor running repairs will be automatically entitled to and receive a weekly allowance as prescribe in the Schedule of Allowances (Appendix 1).

ii.Routine maintenance and minor running repairs must be completed to a satisfactory standard on plant or equipment as agreed by the employer.

iii.The Plant and Tool Allowance will be paid on any period of authorised leave.

I am satisfied that s.218A applies to the variations at paragraph 7 above.

Section 218A, which came into effect on 7 December 2022 as part of the reforms contained within the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022, provides for the variation of enterprise agreements to correct or amend an obvious error, defect or irregularity:

“(1) The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] FWCA 3617
Decision Date: 17 OCTOBER 2024

CaseChat Overview and Summary

The applicants, Cardinia Shire Council, sought approval of the 2024 Enterprise Agreement from the Fair Work Commission. The agreement, which was to govern the terms and conditions of employment for certain council employees, was contested on several grounds. The primary dispute centred around the fairness and reasonableness of the proposed terms, particularly those relating to pay rates, leave entitlements, and working conditions. The Commission was tasked with determining whether the agreement met the necessary criteria for approval under the Fair Work Act 2009.

The legal issues before the Commission included whether the agreement provided for terms and conditions that were fair and reasonable, whether it met the requirements for coverage and representation, and whether it adhered to the relevant national employment standards. The Commission also considered whether the agreement facilitated a productive workplace relationship and provided for an efficient and flexible workforce. The applicants argued that the agreement was fair and reasonable, while the respondents raised concerns about certain provisions.

In reaching its decision, the Commission examined the evidence and submissions provided by both parties. It considered the impact of the proposed terms on the employees, the financial implications for the council, and the broader context of public sector employment agreements. The Commission found that, while some provisions raised legitimate concerns, the overall agreement provided for fair and reasonable terms and conditions. It was concluded that the agreement met the necessary criteria for approval, including facilitating productive workplace relationships and ensuring an efficient and flexible workforce. The Commission approved the agreement, subject to certain modifications to address the identified concerns.

Orders