City Of Palmerston

[2025] FWCA 1687

[2025] FWCA 1687

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

City Of Palmerston

(AG2025/1373)

CITY OF PALMERSTON ENTERPRISE AGREEMENT 2025

Local government administration
DEPUTY PRESIDENT WRIGHT	SYDNEY, 20 MAY 2025

Application for approval of the City of Palmerston Enterprise Agreement 2025

Introduction

1. City of Palmerston (the Employer) has made an application for approval of an enterprise agreement known as the City of Palmerston Enterprise Agreement 2025 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

1. The Agreement will apply to employees who are covered by the Local Government Industry Award 2020.

Notice of Employee Representational Rights (NERR)

1. The NERR referred to the City of Palmerston Enterprise Agreement 2024 (rather than 2025). The Employer provided submissions that the NERR was issued in early 2024, as it had been anticipated that bargaining would conclude in 2024. As bargaining continued into 2025, the Employer updated the title of the Agreement.

1. I am satisfied having regard to those submissions and the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others,[1] that this matters constituted a minor technical or procedural error for the purposes of s.188(5) of the Act, and that the employees covered by the Agreement were not likely to have been disadvantaged by the error.

Voting Notification

1. Employees were sent an email which advised that they would have an opportunity to vote on the Agreement and that voting would be conducted by CiVS, an independent online voting service. Employees were advised to expect to receive details from CiVS via their work email, with staff on leave to receive the link via their private email.

1. Employees were not advised of the precise opening and closing times for the vote until 22 April 2025, the date before the vote commenced.

1. The Employer relied on the following observations of the Full Bench in Shop, Distributive and Allied Employees Association v Allen Family Pty Ltd[2] [2024] FWCFB 48:

…while the Commission is required to take into account the Statement of Principles in determining whether an agreement has been genuinely agreed, it does not operate as a set of mandatory rules that must be complied with by an employer absent which the Commission cannot be satisfied that an agreement has been genuinely agreed.[3]

1. The Employer submitted that:

·     in November 2024, it conducted an unsuccessful vote on an enterprise agreement, which was also conducted in the same way as voting on the Agreement – and, as a result, employees were familiar with the voting process prior to voting on the Agreement in April 2025;

·     of the 99 employees entitled to vote on the Agreement, 87 cast a valid vote (with 86 voting to approve the Agreement); and

·     no employees were disadvantaged by the Employer’s error and there is nothing to suggest that the Agreement has not been genuinely agreed.

1. I have considered the submissions of the Employer and taken into account the Statement of Principles. I am satisfied that the Agreement has been genuinely agreed to by the employees covered by the Agreement having regard to the large number of employees who voted in relation to the Agreement.

Flexibility Term

1. The Employer submitted in its Form F16 that due to a typographical error, the reference to s.65 of the Act in clause 6.5.1 of the Agreement is incorrect and that clause 6.5.1 should refer to s.172 of the Act.

1. I consider it appropriate in the circumstances to allow an amendment of the Agreement and do so pursuant to s.586(a) of the Act.

National Employment Standards (NES) issues

Family and domestic violence leave

1. Clause 32.2 of the Agreement provides that a casual employee is entitled to 10 days of unpaid family and domestic violence leave in a 12-month period. This is inconsistent with s.106A of the Act which provides that a casual employee is entitled to 10 days paid domestic and family violence leave.

1. The Employer submitted that the reference to 'unpaid family and domestic violence leave' for casual employees in clause 32.2 was inadvertent and has requested an amendment to the Agreement to reflect the correct entitlement.

1. I consider it appropriate in the circumstances to allow an amendment of the Agreement to replace the reference to 'unpaid family and domestic violence leave' for casual employees in cl 32.2 of the Agreement to 'unpaid family and domestic violence leave'. I make this amendment pursuant to s.586(a) of the Act.

Notice of termination

1. Clause 11.6 of the Agreement contains a prescriptive list of circumstances which may result in instant dismissal without notice from the Employer. The examples contained in this list do not explicitly appear within the definition of serious misconduct in Reg 1.07 of the Fair Work Regulations and as such, this clause may be more restrictive, as employees may otherwise be eligible for notice under s.117. I note that in accordance with the NES precedence term in clause 5.2 of the Agreement, this clause will be read and interpreted in conjunction with the NES.

Section 186, 187 and 188

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

Section 183 Bargaining Representatives

1. The Australian Municipal, Administrative, Clerical and Services Union (ASU) being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it.

1. In accordance with s.201(2), I note that the Agreement covers the ASU.

Approval

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 27 May 2025. The nominal expiry date of the Agreement is 5 April 2028.

DEPUTY PRESIDENT

[1] [2019] FWCFB 318.

[2] [2024] FWCFB 48

[3] Ibid, [76]

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