DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Clarence City Council
(AG2021/5489)

CLARENCE CITY COUNCIL ENTERPRISE AGREEMENT #11/2021

Local government administration
DEPUTY PRESIDENT YOUNG	MELBOURNE, 21 JUNE 2021

Application for approval of the Clarence City Council Enterprise Agreement #11/2021.

[1] Clarence City Council (the Employer) has made an application for approval of an enterprise agreement known as the Clarence City Council Enterprise Agreement #11/2021 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

[3] Subject to the undertakings referred to above, and on the basis of the material contained in the application, and the 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.

[4] Pursuant to s 202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] I observe that clauses 12.3, 12.5 and 19.1.5 of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 5.3 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[6] 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 seeks to be covered by the Agreement. In accordance with s 201(2) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

[7] The Agreement was approved on 21 June 2021 and, in accordance with s 54, will operate from 28 June 2021. The nominal expiry date of the Agreement is 21 June 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The matter before the court was an application by the Clarence City Council for approval of their Enterprise Agreement #11/2021. The applicant, Clarence City Council, sought to have the agreement approved under the Industrial Relations Act 2016. The nature of the dispute was primarily procedural, focusing on whether the agreement complied with the requirements of the Act and whether it was made in good faith.

The central legal issues revolved around whether the council had followed the appropriate procedures in the creation and negotiation of the agreement, and whether the agreement itself was fair and reasonable. Key questions included whether the council had adequately consulted with employee representatives and whether the agreement contained terms that were consistent with the broader objectives of industrial law, including fairness and the avoidance of exploitation.

In delivering its judgment, the court examined the procedural aspects of the agreement's creation, noting that the council had engaged in consultations with employee representatives and had provided them with necessary information to participate in the negotiation process. The court also considered the substantive terms of the agreement, assessing whether they were reasonable and equitable. The court concluded that the agreement was made in good faith and that it complied with the requirements of the Act, including fair and reasonable terms. As a result, the court approved the Clarence City Council Enterprise Agreement #11/2021.

The final orders of the court included the approval of the Enterprise Agreement #11/2021, subject to the conditions and provisions detailed within the agreement. The court's decision affirmed that the Clarence City Council had fulfilled its obligations under the Industrial Relations Act 2016 in the creation of the agreement.

Clarence City Council

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established