City of Greater Geelong
[2022] FWCA 927
•16 MARCH 2022
[2022] FWCA 927
The attached document wholly replaces the document previously issued with the code [2022] FWC 565 on 16 March 2022 to correct document referencing.
Associate to Commissioner Lee.
Dated 17 March 2022.
| [2022] FWCA 927 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
City of Greater Geelong
(AG2022/365)
City of Greater Geelong Enterprise Agreement (No.11) 2021
| Local government administration | |
| COMMISSIONER LEE | MELBOURNE, 16 MARCH 2022 |
Application for approval of the City of Greater Geelong Enterprise Agreement (No.11) 2021– s 217 application made to vary the Agreement to remove ambiguity or uncertainty – applications granted.
An application has been made for approval of an enterprise agreement known as the City of Greater Geelong Enterprise Agreement (No.11) 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by City of Greater Geelong (the Applicant). The Agreement is a single enterprise agreement.
Alongside the application made pursuant to s.185, the Applicant also filed an application pursuant to s.217 of the Act to vary the Agreement to remove an ambiguity or uncertainty. It is to that application I turn first.
Section 217 Application
The uncertainty or ambiguity is said to arise in relation to the following clauses in the Agreement.
Clause 4.3:
“Inspectorial Employees will be paid $0.474211 per hour to compensate for being subject to climatic conditions when working in the open, dust blowing in the wind on construction sites, sloppy or muddy conditions associated with all types of construction and maintenance and the lack of usual amenities.”
Clause 5.2.1:
| Food Services (see also Schedule 0 - Home and Community Care) |
| … |
| Home and Community Care Services (see also Schedule 0 – home and Community Care) |
| Home Maintenance (see also Schedule 0 – home and Community Care) |
Clause 5.9(b):
“HOME AND COMMUNITY CARE - provisions relating to Employees engaged in Home and Community Care Services, who provide General Home Care, Personal Care and / or Respite Care, Home Maintenance, Food Services and Allied Health are contained in Schedule 0 of this Agreement”.
Clause 1.11 of Schedule 1:
Table B - Personal Trainers, Livewell Instructors and Squad Coaches.
| Level | Year 1 (1 October 2021) Hourly Rate - This is inclusive of the Year 1 salary increase as per clause 4.2.2 (Salary Increases). |
| Level 1 | $37.319040 |
| Level 2 | $38.771700 |
| Level 3 | $40.265280 |
| Level 4 | $41.728170 |
| Level 5 | $43.201290 |
| Level 6 | $44.653950 |
Clause 2.3(a) of Schedule 2:
| Band 2 | A | B | C | D | |
| Year 1 (1 October 2021) - This is inclusive of the Year 1 salary increase as per clause 4.2.2 (Salary Increases). | Hourly | $30.550280 | $30.862160 | $31.208903 | $31.457250 |
| Fortnightly | $2,321.82 | $2,345.52 | $2,371.88 | $2,390.75 | |
| Yearly | $60,367.35 | $60,983.63 | $61,668.79 | $62,159.53 | |
| Year 2 (1 July 2022) - This is inclusive of the Year 2 salary increase as per clause 4.2.2 (Salary Increases). | Hourly | $31.161285 | $31.479403 | $31.833081 | $32.086395 |
| Fortnightly | $2,368.26 | $2,392.43 | $2,419.31 | $2,438.57 | |
| Yearly | $61,574.70 | $62,203.30 | $62,902.17 | $63,402.72 | |
| Year 3 (1 July 2023) - This is inclusive of the Year 3 salary increase as per clause 4.2.2 (Salary Increases). | Hourly | $31.784511 | $32.108991 | $32.469743 | $32.728123 |
| Fortnightly | $2,415.62 | $2,440.28 | $2,467.70 | $2,487.34 | |
| Yearly | $62,806.19 | $63,447.37 | $64,160.21 | $64,670.77 |
Clause 3.4(b) of Schedule 3:
(i) Year 1 (1 October 2021) - This is inclusive of the Year 1 salary increase as per clause 4.2.2 (Salary Increases).
| MCHN Year 1 | MCHN Year 2 | MCHN Year 3 | MCHN Year 4 | |
| Hourly | $52.283816 | $53.816579 | $55.411316 | $57.053947 |
| Fortnightly | $4,064.96 | $4,184.13 | $4,308.12 | $4,435.83 |
| Yearly | $105,689.01 | $108,787.42 | $112,011.09 | $115,331.59 |
(ii) Year 2 (1 July 2022) - This is inclusive of the Year 2 salary increase as per clause 4.2.2 (Salary Increases).
| MCHN Year 1 | MCHN Year 2 | MCHN Year 3 | MCHN Year 4 | |
| Hourly | $53.48634 | $55.05436 | $56.68578 | $58.36619 |
| Fortnightly | $4,146.26 | $4,267.81 | $4,394.28 | $4,524.55 |
| Yearly | $107,802.80 | $110,963.16 | $114,251.32 | $117,638.22 |
(iii) Year 3 (1 July 2023) - This is inclusive of the Year 3 salary increase as per clause 4.2.2 (Salary Increases).
| MCHN Year 1 | MCHN Year 2 | MCHN Year 3 | MCHN Year 4 | |
| Hourly | $54.55607 | $56.15545 | $57.81949 | $59.53351 |
| Fortnightly | $4,229.19 | $4,353.17 | $4,482.17 | $4,615.04 |
| Yearly | $109,958.85 | $113,182.43 | $116,536.34 | $119,990.98 |
Clause 3.5(a) of Schedule 3:
| Qualification | $ per hour |
| Certificate | $2.10 |
| Graduate | $3.56 |
| Masters | $3.96 |
Clause 4.13 of Schedule 4:
“… In services where Early Childhood Educators are not required to wear uniforms, a uniform allowance will be applied of $1.57 per day.”
In a cover letter to the application made under s.217, the Applicant states that:
“As a result of technical errors, the Agreement contains some minor cross-referencing errors which lead to uncertainty and ambiguity (because the correct clause reference cannot always be easily ascertained). Additionally, the Agreement contains some numerical errors, which may lead to ambiguity (because, for instance, an hourly rate is expressed to an incorrect number of decimal places, meaning that when converted to a fortnightly or yearly rate, a different result will be produced to the corresponding fortnightly I yearly rates expressly set out in the Agreement. This discrepancy may lead to confusion as to which hourly, fortnightly and/or yearly rates of pay are actually applicable).”
A question that the s.217 application raises is whether the Agreement can be varied in the manner sought by the Applicant as part of my consideration of approval of the Agreement. The answer to that question is yes in my view for the reasons that follow.
Section 217 provides for the variation of enterprise agreements to remove ambiguity or uncertainty as follows:
(1) FWA may vary an enterprise agreement to remove an ambiguity or uncertainty on application by any of the following:
(a) one or more of the employers covered by the agreement;
(b) an employee covered by the agreement;
(c) an employee organisation covered by the agreement.
(2) If FWA varies the enterprise agreement, the variation operates from the day specified in the decision to vary the agreement.
There are a number of conditions precedent necessary for the exercise of discretion under s 217. An application must have been made by one of the parties set out in ss.217(1)(a)-(c). The application has been made by City of Greater Geelong which is the employer that is covered by the Agreement thus satisfying that requirement. There must also be an enterprise agreement that is the subject of the application. In the present case the Agreement has not yet been approved however that is not a barrier to the use of s.217 for the following reasons:
An enterprise agreement is defined at s 12 of the Act to mean:
(a) A single-enterprise agreement; or
(b) a multi-enterprise agreement.
A single-enterprise agreement is defined in s.12 of the Act to mean “an enterprise agreement made as referred to in sub-section 172(2)”. Section 172(2) of the Act relevantly states that;
“An employer, or 2 or more employers that are single interest employers, may make an enterprise agreement (a single enterprise agreement):
(a) with the employees who are employed at the time the agreement is made and who will be covered by the agreement: or
……………………”
An enterprise agreement is made pursuant to s.182(1) of the Act in the following circumstances;
“(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.”
It is apparent on the material filed with the application for approval of the Agreement that employees were requested by City of Greater Geelong to approve the Agreement by voting on it (s 181(1)) in a ballot conducted on 25 January 2022 to 1 February 2022. A valid majority of employees who participated in the ballot approved the Agreement which was made on 1 February 2022 (s.182(1)). As the Agreement was made on 1 February 2022, it follows that it is an enterprise agreement made pursuant to s.172(2) and as defined under s.12 of the Act. As it is an enterprise agreement as defined under the Act, I am satisfied that it may be varied pursuant to an application made under s.217 of the Act.
Returning now to the merits of the application, I find that the provisions in the following clauses of the Agreement are ambiguous or uncertain:
· Clause 4.3
· Clause 5.2.1
· Clause 5.9(b)
· Clause 1.11 of Schedule 1
· Clause 2.3(a) of Schedule 2
· Clause 3.4(b) of Schedule 3
· Clause 3.5(a) of Schedule 3
· Clause 4.13 of Schedule 4
I note that, as bargaining representatives for the Agreement, I sought the views of the Australian Municipal, Administrative, Clerical and Services Union, the Australian Nursing and Midwifery Federation, and the Association of Professional Engineers, Scientists and Managers, Australia in relation to the application made under s.217. All three bargaining representatives indicated via email that they have no concerns in relation to the application.
The Agreement is consequently varied as follows:
Clause 4.3 will be varied as follows:
“Inspectorial Employees will be paid $0.47421 per hour to compensate for being subject to climatic conditions when working in the open, dust blowing in the wind on construction sites, sloppy or muddy conditions associated with all types of construction and maintenance and the lack of usual amenities.”
Clause 5.2.1 will be varied as follows:
| Food Services (see also Schedule 2 - Home and Community Care) |
| … |
| Home and Community Care Services (see also Schedule 2 – home and Community Care) |
| Home Maintenance (see also Schedule 2 – home and Community Care) |
Clause 5.9(b) will be varied as follows:
“HOME AND COMMUNITY CARE - provisions relating to Employees engaged in Home and Community Care Services, who provide General Home Care, Personal Care and / or Respite Care, Home Maintenance, Food Services and Allied Health are contained in Schedule 2 of this Agreement”.
Clause 1.11 of Schedule 1 will be varied as follows:
Table B - Personal Trainers, Livewell Instructors and Squad Coaches.
| Level | Year 1 (1 October 2021) Hourly Rate - This is inclusive of the Year 1 salary increase as per clause 4.2.2 (Salary Increases). |
| Level 1 | $37.31904 |
| Level 2 | $38.77170 |
| Level 3 | $40.26528 |
| Level 4 | $41.72817 |
| Level 5 | $43.20129 |
| Level 6 | $44.65395 |
Clause 2.3(a) of Schedule 2 will be varied as follows:
| Band 2 | A | B | C | D | |
| Year 1 (1 October 2021) - This is inclusive of the Year 1 salary increase as per clause 4.2.2 (Salary Increases). | Hourly | $30.55028 | $30.86216 | $31.20890 | $31.45725 |
| Fortnightly | $2,321.82 | $2,345.52 | $2,371.88 | $2,390.75 | |
| Yearly | $60,367.35 | $60,983.63 | $61,668.79 | $62,159.53 | |
| Year 2 (1 July 2022) - This is inclusive of the Year 2 salary increase as per clause 4.2.2 (Salary Increases). | Hourly | $31.16128 | $31.47940 | $31.83308 | $32.08639 |
| Fortnightly | $2,368.26 | $2,392.43 | $2,419.31 | $2,438.57 | |
| Yearly | $61,574.70 | $62,203.30 | $62,902.17 | $63,402.72 | |
| Year 3 (1 July 2023) - This is inclusive of the Year 3 salary increase as per clause 4.2.2 (Salary Increases). | Hourly | $31.78451 | $32.10899 | $32.46974 | $32.72812 |
| Fortnightly | $2,415.62 | $2,440.28 | $2,467.70 | $2,487.34 | |
| Yearly | $62,806.19 | $63,447.37 | $64,160.21 | $64,670.77 |
Clause 3.4(b) of Schedule 3 will be varied as follows:
(i) Year 1 (1 October 2021) - This is inclusive of the Year 1 salary increase as per clause 4.2.2 (Salary Increases).
| MCHN Year 1 | MCHN Year 2 | MCHN Year 3 | MCHN Year 4 | |
| Hourly | $53.48634 | $55.05436 | $56.68578 | $58.36619 |
| Fortnightly | $4,064.96 | $4,184.13 | $4,308.12 | $4,435.83 |
| Yearly | $105,689.01 | $108,787.42 | $112,011.09 | $115,331.59 |
(ii) Year 2 (1 July 2022) - This is inclusive of the Year 2 salary increase as per clause 4.2.2 (Salary Increases).
| MCHN Year 1 | MCHN Year 2 | MCHN Year 3 | MCHN Year 4 | |
| Hourly | $54.55607 | $56.15545 | $57.81949 | $59.53351 |
| Fortnightly | $4,146.26 | $4,267.81 | $4,394.28 | $4,524.55 |
| Yearly | $107,802.80 | $110,963.16 | $114,251.32 | $117,638.22 |
(iii) Year 3 (1 July 2023) - This is inclusive of the Year 3 salary increase as per clause 4.2.2 (Salary Increases).
| MCHN Year 1 | MCHN Year 2 | MCHN Year 3 | MCHN Year 4 | |
| Hourly | $55.64719 | $57.27856 | $58.97588 | $60.72422 |
| Fortnightly | $4,229.19 | $4,353.17 | $4,482.17 | $4,615.04 |
| Yearly | $109,958.85 | $113,182.43 | $116,536.34 | $119,990.98 |
Clause 3.5(a) of Schedule 3 will be varied as follows:
| Qualification | $ per hour |
| Certificate | 2.10143 |
| Graduate | 3.56448 |
| Masters | 3.96007 |
Clause 4.13 of Schedule 4 will be varied as follows:
“… In services where Early Childhood Educators are not required to wear uniforms, a uniform allowance will be applied of $1.66 per day.”
An order giving effect to this variation will take effect from the date of operation of the Agreement, that being 23 March 2022.[1]
Application for approval of the Agreement
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 and 190 as are relevant to this application for approval have been met.
The Australian Municipal, Administrative, Clerical and Services Union, Australian Nursing and Midwifery Federation, and the Association of Professional Engineers, Scientists and Managers, Australia 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) I note that the Agreement covers the organisations.
I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):
· Clause 6.5(d) – Bereavement / Compassionate Leave.
· Clause 7.2 – Notice of Termination.
However, noting clause 1.5 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 23 March 2022. The nominal expiry date of the Agreement is 30 June 2024.
COMMISSIONER
Annexure A
[1] PR739294.
Printed by authority of the Commonwealth Government Printer
<AE515324 PR739392>
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