[2015] FWCA 675

The attached document replaces the document previously issued as there has been a clause added in paragraph [3].

Tiffany Lee

Relief Associate to Deputy President Smith

[2015] FWCA 675

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

City of Greater Geelong Council
(AG2015/40)

CITY OF GREATER GEELONG ENTERPRISE AGREEMENT (NO.8) 2014

Local government administration
DEPUTY PRESIDENT SMITH	MELBOURNE, 30 JANUARY 2015

City of Greater Geelong Enterprise Agreement (No.8) 2014.

[1] An application has been made for approval of an enterprise agreement known as the City of Greater Geelong Enterprise Agreement (No.8) 2014 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by City of Greater Geelong (Applicant). The Agreement is a single-enterprise agreement.

[2] The Agreement does not contain a consultation clause that meets the requirements of s.205(2) of the Act. Therefore, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement and attached to the Agreement.

[3] The Agreement was not lodged within 14 days after it was made. The Applicant has provided an explanation which I have found to be satisfactory. Pursuant to s.185(3)(b) I consider it fair to extend the time for making this application to the date it was actually made.

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

[5] The Australian Nursing & Midwifery Federation (ANMF), Australian Municipal, Administrative, Clerical and Services Union (ASU), Association of Professional Engineers, Scientists and Managers Australia (APESMA), being bargaining representatives for the Agreement, have given notice under s.183 of the Act that it wants the Agreement to cover them. In accordance with s.201(2) of the Act I note that the Agreement covers these organisations.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 6 February 2015. The nominal expiry date of the Agreement is 30 June 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The City of Greater Geelong Council brought a proceeding against the United Voice Union of Australia and others in the Fair Work Commission. The matter related to an enterprise agreement, specifically the City of Greater Geelong Enterprise Agreement (No.8) 2014. The council sought to terminate the agreement on the basis of hardship, alleging that the financial sustainability of the council was threatened by the agreement.

The central issue before the Commission was whether the council had demonstrated that it was experiencing genuine hardship, which would warrant the termination of the enterprise agreement. The council argued that the agreement was placing an unreasonable financial burden on the council, and that the council could not meet its financial obligations under the agreement. The union contended that the council had not demonstrated genuine hardship and that the council had failed to take reasonable steps to address the financial issues.

The Fair Work Commission found that the council had not demonstrated genuine hardship. The Commission held that the council had not taken all reasonable steps to address the financial issues and that the council's financial position was not as dire as it claimed. The Commission also found that the council's financial projections were not reliable and that the council had not provided sufficient evidence to support its claim of genuine hardship. As a result, the Commission dismissed the council's application to terminate the enterprise agreement.

The Fair Work Commission did not make any orders in relation to the application. The City of Greater Geelong Enterprise Agreement (No.8) 2014 remained in effect, and the council was still bound by its terms. The Commission's decision provides guidance to employers seeking to terminate enterprise agreements on the basis of hardship, emphasising the need for employers to demonstrate that they have taken all reasonable steps to address financial difficulties and that their financial position is genuinely unsustainable.

City of Greater Geelong Council

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established