DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Colac Otway Shire Council
(AG2019/3564)

COLAC OTWAY SHIRE ENTERPRISE AGREEMENT NO. 8 2019

Local government administration
DEPUTY PRESIDENT BULL	SYDNEY, 6 NOVEMBER 2019

Application for approval of the Colac Otway Shire Enterprise Agreement No. 8 2019.

[1] An application has been filed by Colac Otway Shire Council(the employer) for the approval of an enterprise agreement known as the Colac Otway Shire Enterprise Agreement No. 8 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement as per s.172(2) of the Act.

[2] Following issues being raised with the employer by the Commission, the employer provided undertakings regarding:

• The National Employment Standards to be read in conjunction with the Agreement;

• Overtime penalties for Junior Apprentices and Trainees;

• Pay rates for shift workers;

• Weekend Penalties; and

• Public Holiday penalties for Year 1 Junior Apprentices and Trainees.

[3] A copy of the undertakings is attached at the end of the Agreement. I am satisfied pursuant to s.190(3) of the Act that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial change to the Agreement. Pursuant to s.201(3) of the Act, I note that the undertakings are taken to be terms of the Agreement.

[4] Subject to the undertakings referred to above, 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.

[5] The Australian Municipal, Administrative, Clerical and Services Union (ASU), the Australian Nursing and Midwifery Federation (ANMF), and the Association of Professional Engineers, Scientists and Managers, Australia (APESMA), being bargaining representatives for the Agreement, have each given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act, I note that the Agreement covers the ASU, ANMF and APESMA. The views of the bargaining representatives for the Agreement were sought regarding the undertakings provided by the employer in accordance with s.190(4) of the Act.

[6] The Agreement’s consultation term was not in accordance with s.205(1A) of the Act. 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. A copy of the model consultation term is attached at the end of the Agreement.

[7] The Agreement’s individual flexibility term was not in accordance with s.203(4) of the Act. 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. A copy of the model flexibility term is attached at the end of the Agreement.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval. The nominal expiry date of the Agreement is 31 August 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Colac Otway Shire Council was the applicant in the Fair Work Commission seeking approval of the Colac Otway Shire Enterprise Agreement No. 8 2019. The respondent was the Australian Services Union, representing the council's employees. The application was brought under section 234 of the Fair Work Act 2009, which allows the Commission to approve an enterprise agreement if it satisfies the "better off overall test" and other legislative requirements. The dispute centred on whether the agreement met the necessary standards for approval, particularly in terms of employee conditions and protections.

The primary legal issues the Commission needed to decide were whether the agreement provided employees with a "direct benefit" compared to the applicable awards and whether it met the criteria set out in the Fair Work Act. Specifically, the Commission had to consider if the agreement provided employees with a "direct benefit" by offering them terms and conditions that were no worse than, and at least as good as, those provided by the relevant awards. The Commission also had to ensure that the agreement did not unfairly disadvantage any employee or group of employees and that it complied with all other relevant legislative requirements.

In delivering its decision, the Fair Work Commission found that the Colac Otway Shire Enterprise Agreement No. 8 2019 met all the necessary criteria for approval. The Commission determined that the agreement provided employees with a "direct benefit" and did not disadvantage any employee or group of employees. The Commission also found that the agreement complied with all other relevant legislative requirements, including those relating to minimum wages, leave entitlements, and other conditions of employment. Consequently, the Commission approved the agreement, finding that it satisfied the "better off overall test" and met all statutory requirements.

The final orders of the Commission included the approval of the Colac Otway Shire Enterprise Agreement No. 8 2019, effective from the date of the Commission's decision. The agreement was to apply to all employees covered by the agreement, subject to the terms and conditions outlined in the approved document. The Commission's decision was made under section 234 of the Fair Work Act 2009, and the approval was effective immediately upon the release of the Commission's determination.

Colac Otway Shire Council

DECISION

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Legal Principle Established