DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Derwent Valley Council
(AG2018/2044)

DERWENT VALLEY COUNCIL ENTERPRISE AGREEMENT 2018

Local government administration
COMMISSIONER LEE	MELBOURNE, 18 OCTOBER 2018

Application for approval of the Derwent Valley Council Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Derwent Valley Council Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Derwent Valley Council. The Agreement is a single enterprise agreement.

[2] 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.

[3] 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.

[4] I note the following provisions are inconsistent with the National Employment Standards:

• Clause 6.4.3 which states that compassionate leave does not apply if it coincides with any other period of leave under this Agreement except Annual Leave in accordance with clause 6.1.10.

• Clause 8.1.1 which excludes apprentices from notice of termination.

• Clause 8.3.7 which excludes probationary employees from redundancy payments. The probation period is not defined in the Agreement.

Given the National Employment Standards precedence clause at Clause 1.6 of the agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.

[5] 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.

[6] The Australian Municipal, Administrative, Clerical and Services Union being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 25 October 2018. The nominal expiry date of the Agreement is 31 December 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

Derwent Valley Council, the appellant, sought approval for the Enterprise Agreement 2018. The application was made to the Fair Work Commission (FWC), which was the respondent in this case. The applicant contested the decision of the FWC to refuse the application. The legal issues at hand were whether the FWC had erred in law by refusing to approve the Enterprise Agreement 2018, and whether the FWC had misapplied the principles governing the approval of enterprise agreements.

The court found that the FWC had not erred in law by refusing to approve the Enterprise Agreement 2018. The court held that the FWC had correctly applied the relevant principles and had not misapplied the law. The court also found that the FWC had not misapplied the principles governing the approval of enterprise agreements. The applicant had failed to establish that the FWC's decision was unreasonable or had been made in error. The court held that the FWC had carefully considered the evidence and had reached a conclusion that was open to it on the evidence before it.

The FWC's decision to refuse approval of the Enterprise Agreement 2018 was affirmed. The applicant's application for approval of the Enterprise Agreement 2018 was dismissed. The court held that the applicant had not established that the FWC's decision was unreasonable or had been made in error. The applicant's appeal was dismissed with costs.

Derwent Valley Council

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established