City of Darebin
[2024] FWCA 3537
•8 OCTOBER 2024
| [2024] FWCA 3537 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
City of Darebin
(AG2024/805)
DAREBIN CITY COUNCIL ENTERPRISE AGREEMENT 2022-2025
| Local government administration | |
| COMMISSIONER MATHESON | SYDNEY, 8 OCTOBER 2024 |
Application for approval of the Darebin City Council Enterprise Agreement 2022-2025
An application has been made for approval of an enterprise agreement known as the Darebin City Council Enterprise Agreement 2022-2025 (Agreement). The application was made by City of Darebin (Applicant) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single enterprise agreement.
The application was referred to me following the decision of the Full Bench in Australian Municipal, Administrative, Clerical and Services Union v City of Darebin, Australian Nursing and Midwifery Federation and Association of Professional Engineers, Scientists and Managers Australia[1] which quashed an earlier decision[2] to approve the Agreement.
I observe that clause 79.8 of the Agreement dealing with personal (sick) leave and notice requirements for that leave may be inconsistent with the National Employment Standards (NES) and in particular s.107(2)(a) of the Act which states that notice of the taking of leave must be given to the employer as soon as practicable (which may be a time after the leave has started). However, noting clauses 4.3 and 8.1 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.
The Applicant, who is also the employer covered by the Agreement, has provided written undertakings. A copy of the undertakings is attached at Annexure A of this decision (Undertakings). The views of each person I know is a bargaining representative for the Agreement were sought in relation to the Undertakings and no objections were raised. I am satisfied that the effect of accepting the Undertakings is not likely to:
(a)cause financial detriment to any employee covered by the Agreement; or
(b)result in substantial changes to the Agreement.
Pursuant to s.190(3) of the Act, I accept the Undertakings.
Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 (Cth) (Regulations) is taken to be a term of the Agreement.
Subject to the Undertakings, and on the basis of the materials before the Commission, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to the application for approval of the Agreement have been met.
The “Association of Professional Engineers, Scientists and Managers Australia”, “Australian Municipal, Administrative, Clerical and Services Union” and “Australian Nursing and Midwifery Federation”, being 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) of the Act, I note that the Agreement covers the organisations.
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 15 October 2024. The nominal expiry date of the Agreement is 30 June 2025.
COMMISSIONER
Annexure A
[1] [2024] FWCFB 381.
[2] [2024] FWCA 1160.
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