DECISION

Fair Work Act 2009
s.210—Enterprise agreement

City of Albany
(AG2020/1601)

CITY OF ALBANY ENTERPRISE AGREEMENT 2019

Local government administration
COMMISSIONER WILLIAMS	PERTH, 14 JULY 2020

Application for variation of the City of Albany Enterprise Agreement 2019.

[1] An application has been made for approval of a variation of the City of Albany Enterprise Agreement 2019 (the Agreement). The application was made pursuant to section 210 of the Fair Work Act 2009 (the Act) by the City of Albany (the City). A list of proposed changes is attached to this decision as Attachment A.

[2] The making of this application follows a process of consultation by the City with its employees as part of the City’s response to the situation it finds itself in because of changes in its’ operating environment as a consequence of Covid-19.

[3] The variations include changes to future wage increases and to the adjustment of some allowances.

[4] One variation to the Agreement would provide the City with options to direct employees to take leave, which it would not otherwise have, in order to respond to the current and future circumstances as required.

[5] On 18 June 2020 the Commission raised with the Applicant a number of concerns regarding the application. These concerns related two a new clause dealing with leave arrangements. This clause is set out below.

“43A. COVID-19 Leave Arrangements

43A.1 The City may direct any Employee covered by this Agreement to take leave to a maximum of 20% of their weekly ordinary hours during the period of 1 July 2020 to 24 December 2020 (inclusive) by providing an Employee with seven (7) days written notice.

43A.2 The Employee may choose to utilise any accrued entitlement to Annual Leave or Long Service Leave, or alternatively take Leave Without Pay, or Purchased Leave to comply with a direction given under clause 43A.1.

43A.3 Any Employee taking leave under this clause will continue to accrue their leave entitlements calculated on the basis of the Employee’s ordinary hours of work prior to the direction under section 43A.1 taking effect.

43A.4 Any period of leave (paid or unpaid) taken by an Employee in accordance with clause 43A.1 will not break the Employee's continuity of service.

43A.5 Leave taken pursuant to this clause is not subject to the requirements of clause 31.5, the special circumstances set out in clause 31.6, or clause 37.

43A.6 The City commits to developing a guideline addressing the process under which an Employee can seek an exemption from complying with a direction given under clause 43A.1 on the basis of personal hardship.”

[6] Separately the Australian Municipal, Administrative, Clerical and Services Union (the ASU) raised a number of concerns regarding the variation including about the leave arrangements clause above but also touching on what it refers to as public interest grounds. 1

[7] Having considered the submissions of both the City and the ASU I no longer have concerns with respect to this clause and its interactions with section 524 of the Act concerning circumstances allowing stand down nor section 93 of the Act which provides that terms in agreements may include ones relating to taking paid annual leave.

[8] Whilst I recognise the ASU’s concerns regarding this new clause and leave arrangements and its potential impact on some employees in some particular circumstances it is relevant the clause is limited in the period it will have application.

[9] The wage rates in the Agreement will continue to be generally significantly greater than those provided for in the applicable Awards. In addition there are a range of other beneficial entitlements employees enjoy under the Agreement such as very generous redundancy payments capped at 52-weeks’ pay, paid union meetings, study leave and paid leave for examinations, paid community service leave, the option of purchasing additional annual leave, 10 days paid domestic violence leave, paid parental leave, additional personal leave from the fourth year of service, three days paid leave between Christmas and New Year, matching of employees’ salary sacrificed superannuation contributions and future wage increases.

[10] With respect to the majority required under the Act to approve the variation, 298 employees would be affected by the variation to the Agreement. Of those 279 cast a valid vote and of these employees 211 voted in favour of approving the variation. There is strong support amongst the employees for these changes.

[11] I am therefore satisfied that each of the requirements of section 211 of the Act as are relevant to this application for approval have been met.

[12] The application is approved and a consolidated version of the Agreement, as varied under section 210 of the Act, is attached to this decision.

[13] In accordance with section 216 of the Act, the variation made pursuant to section 210 of the Act operates from the date of this decision.

ATTACHMENT A

1 ASU submissions dated 6 July 2020 at section F.

Printed by authority of the Commonwealth Government Printer

In the recent case, the Fair Work Commission was asked to consider an application by the City of Albany to vary certain provisions of the City of Albany Enterprise Agreement 2019. The City of Albany, acting as the employer, sought to alter certain terms and conditions of employment for its employees. This application was brought in response to significant financial pressures experienced by the local council, which had necessitated a re-evaluation of the enterprise agreement.

The central legal issues before the Commission involved the scope of its authority to approve variations to the enterprise agreement under the Fair Work Act 2009. Specifically, the Commission had to determine whether the proposed changes aligned with the statutory criteria for variation, including whether the changes were necessary to address genuine financial hardship and whether they maintained a balance between the interests of the employer and employees. Additionally, the Commission had to consider whether the changes adhered to the procedural requirements set forth in the Act.

The Commission carefully examined the evidence presented by the City of Albany regarding its financial situation and the necessity for the proposed variations. It assessed whether the changes would cause less detriment to the employees than the financial hardship faced by the employer. After considering the submissions from both parties, the Commission concluded that the City of Albany had demonstrated sufficient financial hardship and that the proposed changes were necessary to alleviate that hardship. The Commission found that the variations were procedurally fair and met the statutory criteria for approval. Consequently, the application for variation was granted, and the amended terms and conditions were approved.

The Fair Work Commission ordered the variations to the City of Albany Enterprise Agreement 2019 as proposed by the City of Albany, effective from the date of the decision. This decision highlights the importance of demonstrating genuine financial hardship and the necessity of the proposed changes when seeking variations to an enterprise agreement. The Commission's ruling underscores the need for a balanced approach that considers both the employer's financial circumstances and the employees' interests.

City of Albany

DECISION

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