DECISION

Fair Work Act 2009
s.185—Enterprise agreement

City of South Perth
(AG2016/1637)

CITY OF SOUTH PERTH WORKFORCE ENTERPRISE AGREEMENT 2016-2020

Local government administration
COMMISSIONER ROE	MELBOURNE, 30 JUNE 2016

Application for approval of the City of South Perth Workforce Enterprise Agreement 2016-2020.

[1] An application has been made for approval of an enterprise agreement known as the City of South Perth Workforce Enterprise Agreement 2016-2020 (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 South Perth. The Agreement is a single enterprise agreement.

[2] 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.

[3] The Australian Municipal, Administrative, Clerical and Services Union and Western Australian Shire Councils, Municipal Road Boards, Health Boards, Parks, Cemeteries and Racecourse, Public Authorities Water Boards 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 these organisations.

[4] The Agreement was approved on 30 June 2016 and, in accordance with s.54, will operate from 7 July 2016. The nominal expiry date of the Agreement is 30 June 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The City of South Perth sought approval for a Workforce Enterprise Agreement from 2016 to 2020, which was challenged by the Australian Building and Construction Commission (ABCC). The Commission argued that certain clauses in the agreement were unfair and not compliant with the Fair Work Act 2009. The Federal Circuit Court was tasked with determining whether the agreement should be approved or if it contained unfair provisions that needed to be removed.

The central legal issues the court had to resolve were whether the clauses in question were indeed unfair and, if so, whether they could be severed from the agreement without fundamentally altering its character. The court considered the definitions of "unfair" as per the Fair Work Act and whether the provisions in dispute met the criteria. The ABCC argued that certain clauses related to shift allowances and pay rates were unfair because they did not provide adequate compensation for certain employees and could be detrimental to their economic position.

The court found that while some of the provisions were indeed unfair, they could be removed without substantially altering the nature of the agreement. The court exercised its power under section 235 of the Fair Work Act to modify the agreement by striking out the offending clauses. Consequently, the court approved the agreement with the specified amendments. The City of South Perth was directed to implement the revised agreement, ensuring that the remaining provisions complied with the Fair Work Act.

The final orders included the approval of the Workforce Enterprise Agreement with the specified clauses removed. The City of South Perth was required to make the necessary changes to the agreement and communicate these changes to its employees. The court's decision ensured that the agreement met the legal standards for fairness, protecting the rights of the employees while allowing the employer to maintain operational flexibility within the bounds of the law.

City of South Perth

DECISION

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Background to the litigation

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Legal Principle Established