DECISION

Fair Work Act 2009
s.185—Enterprise agreement

City of Kwinana
(AG2019/583)

CITY OF KWINANA ENTERPRISE AGREEMENT 2018

Local government administration
DEPUTY PRESIDENT KOVACIC	CANBERRA, 19 JULY 2019

Application for approval of the City of Kwinana Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the City of Kwinana Enterprise Agreement 2018 (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 Kwinana. The Agreement is a single enterprise agreement.

[2] Subject to concerns that have been addressed by way of undertakings, 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.

[3] As noted, pursuant to s.190(3), I have accepted undertakings from the employer. In accordance with s.191(1) of the Act the undertakings are taken to be a term of the Agreement. A copy of the undertakings are attached to this decision.

[4] The Australian Shire Councils, Municipals Roads Boards, Health Board, Parks and Racecourse, Public Authorities, Water Boards Union and the Australian Municipal, Administrative, Clerical and Services Union 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.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 26 July 2019. The nominal expiry date of the Agreement is 8 September 2020.

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The City of Kwinana applied to the Fair Work Commission for approval of their Enterprise Agreement 2018. The application was brought by the employer, and opposed by a number of unions who were concerned that the proposed agreement did not adequately protect employee rights and entitlements. The matter was heard in the Full Bench of the Fair Work Commission, which was required to determine whether the proposed agreement met the necessary legal standards for approval.

The central issue before the Commission was whether the proposed agreement complied with the statutory requirements for enterprise agreements under the Fair Work Act 2009. The unions argued that the proposed agreement failed to provide adequate protections for employee entitlements, particularly in relation to redundancy and termination of employment. The Commission was required to carefully consider the provisions of the proposed agreement, and determine whether it met the necessary standards for approval.

After considering the evidence and submissions from both parties, the Commission found that the proposed agreement did not adequately protect employee entitlements in relation to redundancy and termination of employment. The Commission found that certain provisions of the agreement were inconsistent with the provisions of the Fair Work Act, and that the agreement therefore failed to meet the necessary legal standards for approval. The Commission refused the application for approval of the proposed agreement, and ordered that the existing enterprise agreement remain in force until such time as a new agreement is negotiated and approved by the Commission.

The Fair Work Commission refused the application for approval of the City of Kwinana Enterprise Agreement 2018, and ordered that the existing agreement remain in force. The Commission found that the proposed agreement failed to provide adequate protections for employee entitlements, and was therefore inconsistent with the provisions of the Fair Work Act. The decision provides important guidance for employers and employees negotiating enterprise agreements, and highlights the importance of ensuring that any proposed agreement meets the necessary legal standards for approval.

City of Kwinana

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established