City of Palmerston

[2013] FWCA 3925

[2013] FWCA 3925

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

City of Palmerston
(AG2013/6644)

THE CITY OF PALMERSTON ENTERPRISE AGREEMENT 2013

Northern Territory
DEPUTY PRESIDENT BARTEL	ADELAIDE, 24 JUNE 2013

Application for approval of the City of Palmerston Enterprise Agreement 2013.

[1] An application for approval of an enterprise agreement known as the City of Palmerston Enterprise Agreement 2013 (the Agreement) has been made by the City of Palmerston (the employer). The application has been made pursuant to s.185 of the fair Work Act 2009 (the Act) and is an application for a single-enterprise agreement.

[2] 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] The Agreement was filed outside the 14 day time limit prescribed in s.185(3)(a) of the Act. Having regard to the minimal delay and the reasons for the delay 1 it is fair to extend the time limit in accordance with s.185(3)(b) of the Act and I order accordingly.

[4] The Agreement contains a purported flexibility term, however it does not meet the requirements of s.203(2)(b) of the Act. In accordance with s.202(4) of the Act, the Model Flexibility Term is taken to be a term of the Agreement. The Model Flexibility Term is appended to this decision and will be attached to the Agreement as Schedule C.

[5] The Australian Municipal, Administrative, Clerical and Services Union (the ASU) has given notice under s.183 of the Act that it wants the Agreement to cover it. As required by s.201(2) of the Act, I note that the Agreement covers the ASU.

[6] The Agreement is approved. In accordance with s.54(1) of the Act, the Agreement will operate from 27 June 2013. The nominal expiry date of the Agreement is 5 April 2017.

DEPUTY PRESIDENT

Schedule C Model flexibility term

(regulation 2.08)

Model flexibility term

(1) An employer and employee covered by this enterprise agreement may agree to make an individual flexibility arrangement to vary the effect of terms of the agreement if:

(a) the agreement deals with 1 or more of the following matters: (i) arrangements about when work is performed;

(ii) overtime rates; (iii) penalty rates; (iv) allowances;

(v) leave loading; and

(b) the arrangement meets the genuine needs of the employer and employee in relation to

1 or more of the matters mentioned in paragraph (a); and

(c) the arrangement is genuinely agreed to by the employer and employee.

(2) The employer must ensure that the terms of the individual flexibility arrangement: (a) are about permitted matters under section 172 of the Fair Work Act 2009; and (b) are not unlawful terms under section 194 of the Fair Work Act 2009; and

(c) result in the employee being better off overall than the employee would be if no arrangement was made.

(3) The employer must ensure that the individual flexibility arrangement: (a) is in writing; and

(b) includes the name of the employer and employee; and

(c) is signed by the employer and employee and if the employee is under 18 years of age, signed by a parent or guardian of the employee; and

(d) includes details of:

(i) the terms of the enterprise agreement that will be varied by the arrangement;

and

(ii) how the arrangement will vary the effect of the terms; and

(iii) how the employee will be better off overall in relation to the terms and conditions of his or her employment as a result of the arrangement; and

(e) states the day on which the arrangement commences.

(4) The employer must give the employee a copy of the individual flexibility arrangement within 14 days after it is agreed to.

(5) The employer or employee may terminate the individual flexibility arrangement:

(a) by giving no more than 28 days written notice to the other party to the arrangement;

or

(b) if the employer and employee agree in writing — at any time.

 1   As set out in correspondence from the employer dated 27 May 2013, the 5 day delay was due to technical issues preventing electronic lodgement.

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