City of Swan

[2018] FWCA 7300

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

City of Swan

(AG2018/3085)

CITY OF SWAN WASTE/RECYCLING SERVICES ENTERPRISE AGREEMENT 2018 - 2021

Local government administration
DEPUTY PRESIDENT BEAUMONT	PERTH, 29 NOVEMBER 2018

Application for approval of the City of Swan Waste/Recycling Services Enterprise Agreement 2018 - 2021.

An application has been made for approval of an enterprise agreement known as the City of Swan Waste/Recycling Services Enterprise Agreement 2018 - 2021 (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 Swan. The agreement is a single enterprise agreement.

The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

The Agreement was approved on 29 November 2018 and, in accordance with s.54, will operate from 6 December 2018. The nominal expiry date of the Agreement is 6 December 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case before the Fair Work Commission involved the City of Swan and the local waste and recycling services union, which sought approval for the City of Swan Waste/Recycling Services Enterprise Agreement 2018 - 2021. The union argued that the proposed agreement was fair and reasonable, while the City of Swan contended that certain aspects of the agreement were not in line with the enterprise's needs and financial constraints.

The primary legal issue before the court was whether the proposed enterprise agreement met the requirements of the Fair Work Act 2009, specifically whether it was a "better off overall test" agreement. This test requires that the employees be at least as well off under the new agreement as they would have been under their previous conditions, and that they have not lost any existing entitlements without receiving adequate compensation.

The Fair Work Commission examined the terms and conditions of the proposed agreement, focusing on factors such as wages, hours of work, and other employment conditions. The Commission concluded that while the proposed agreement provided some improvements for the employees, it did not fully meet the better off overall test. The Commission found that certain aspects of the agreement, such as the proposed changes to penalty rates, did not adequately compensate the employees for the loss of existing entitlements. As a result, the Commission did not approve the proposed agreement.

The Fair Work Commission ordered that the proposed agreement be returned to the parties for further negotiation and revision, with specific guidance on how to address the issues identified in the Commission's decision. The Commission emphasised the importance of ensuring that any revised agreement met the better off overall test and provided adequate protection for the employees' existing entitlements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established