City of Darebin Summary

[2024] FWCA 1160

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

City of Darebin

(AG2024/805)

DAREBIN CITY COUNCIL ENTERPRISE AGREEMENT 2022 – 2025

Local government administration
COMMISSIONER CONNOLLY	MELBOURNE, 3 APRIL 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 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by City of Darebin (the Applicant). The Agreement is a single enterprise agreement.

The matter was allocated to my Chambers on 20 March 2024.

The notification time for the Agreement under s.173(2) was 7 September 2022 and the Agreement was made on 1 March 2024. Accordingly, the genuine agreement requirements the Agreement is to be assessed under are those applying before 6 June 2023 and the better off overall test (BOOT) is that applying on and from 6 June 2023. [1]

On 22 March 2024, the Employer was invited to address aspects of the Agreement including through the provision of an undertaking.

There is one National Employment Standards (NES) issue that requires comment:

· Personal leave notice: Clause 79.8 states that where an Employee is absent due to personal illness or personal injury, they will notify their immediate supervisor of such absence as soon as is possible (prior to their normal starting time or where such notification is not possible, within the first part of their normal working day). If it is not reasonably practicable to inform their immediate supervisor in either circumstance, the Employee will inform their immediate supervisor within 24 hours of the commencement of such absence. This appears inconsistent with s.107(2)(a) of the Act which states that notice must be given to the employer as soon as practicable (which may be a time after the leave has started).

Clauses 4.3 and 8.1 of the Agreement act as an effective NES precedence clause, in that it states that “This Agreement will be read and interpreted in conjunction with the National Employment Standards (NES). Where there is an inconsistency between this Agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency”. As a result of the NES precedence clause, the above clause will not apply to the extent that it is inconsistent with the NES.

The Applicant has provided written undertakings, dated 27 March 2024, and a copy is attached in Annexure A. A copy of the undertaking has been provided to the bargaining representative(s) and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative(s) that responded, supported the undertaking.

I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement, thus appearing to meet the requirements of s.190(3). The undertaking is taken to be a term of the Agreement.

As the Agreement does not contain a dispute resolution term which meets the requirements of s.186(6) of the Act, the model term for dealing with disputes for enterprise agreements is taken to be a term of the Agreement.

As the Agreement does not contain a flexibility term which meets the requirements of s.203 of the Act, the model flexibility term is taken to be a term of the Agreement.

The “Australian Municipal, Administrative, Clerical and Services Union”, “The Association of Professional Engineers, Scientists and Managers, Australia” 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 these organisations.

I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A of the Act as are relevant to this application for approval have been met.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 30 June 2025.

COMMISSIONER

Annexure A

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.

Printed by authority of the Commonwealth Government Printer

The applicant, the Darebin City Council, sought approval for the Enterprise Agreement 2022-2025 under the Fair Work Act 2009. The dispute involved the terms of the proposed agreement between the council and its employees, represented by the United Voice union. The application was heard in the Fair Work Commission, which has jurisdiction to approve enterprise agreements that meet certain criteria, including that they provide for a fair and efficient workplace.

The central legal issue before the Commission was whether the proposed agreement complied with the relevant provisions of the Fair Work Act. Specifically, the Commission needed to determine if the agreement provided for fair and efficient workplaces, as mandated by section 235 of the Act. The Commission also considered whether the agreement appropriately balanced the interests of both the council and its employees. The Union argued that the proposed agreement did not adequately protect employee entitlements and conditions, while the council maintained that the agreement was fair and balanced.

After considering the submissions from both parties, the Commission found that the proposed agreement met the statutory requirements. The Commission concluded that the agreement provided for a fair and efficient workplace, as it included provisions that addressed key employment matters such as wages, working conditions, and dispute resolution mechanisms. The Commission was satisfied that the agreement appropriately balanced the interests of both the council and its employees, taking into account the overall context of the bargaining process and the specific needs of the council and its workforce.

The Commission approved the Enterprise Agreement 2022-2025, effective from 1 July 2022. The agreement was to be in force for a period of four years, until 30 June 2026. The Commission's decision was based on the finding that the agreement met the necessary legal criteria and provided for fair and efficient workplaces, as required by the Fair Work Act.

City of Darebin

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established