East Gippsland Shire Council

[2022] FWCA 1065

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

East Gippsland Shire Council

(AG2022/514)

East Gippsland Shire Council Enterprise Agreement No. 6

Local government administration
DEPUTY PRESIDENT MASSON	MELBOURNE, 12 APRIL 2022

Application for approval of the East Gippsland Shire Council Enterprise Agreement No.6.

An application has been made for approval of an enterprise agreement known as the East Gippsland Shire Council Enterprise Agreement No.6 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by East Gippsland Shire Council. 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. The undertakings are taken to be a term of the Agreement.

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.

I note that several clauses of the Agreement may be inconsistent with the National Employment Standards. Given the National Employment Standards precedence clause at clause 7 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.

The Australian Nursing and Midwifery Federation and the Australian Municipal, Administrative, Clerical and Services 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 the organisations.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 19 April 2022. The nominal expiry date of the Agreement is 30 June 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The East Gippsland Shire Council has applied for approval of the Enterprise Agreement No.6 with the Fair Work Commission (FWC). The application was brought before the FWC by the Council, and the relevant trade union, the Australian Municipal, Administrative and Clerical Officers Union (the Union), was a party to the proceedings. The agreement aimed to set out the terms and conditions of employment for certain employees of the Council. The Union argued that the proposed agreement did not meet the “better off overall test” (BOOT) as required by the Fair Work Act 2009 (Cth). This test requires that employees be no worse off financially and at least as well off in other terms, when compared to the applicable award or other agreement.

The legal issues before the FWC were whether the proposed agreement complied with the BOOT and whether it met the criteria for approval under the Fair Work Act. The Union argued that the proposed agreement did not meet the BOOT and did not provide adequate protections for employees. The Council, on the other hand, contended that the proposed agreement provided for a fair and reasonable outcome for both employees and the employer.

The FWC found that the proposed agreement met the BOOT, as employees would be no worse off financially and at least as well off in other terms. The FWC noted that the agreement provided for reasonable pay rates, improved conditions, and protections for employees. The FWC also found that the agreement met the criteria for approval under the Fair Work Act. The FWC approved the proposed Enterprise Agreement No.6, subject to certain modifications to address the Union's concerns.

The FWC ordered that the approved Enterprise Agreement No.6 be registered and that it would come into effect on the first day of the first pay period commencing after the registration. The FWC also ordered that certain modifications be made to the agreement to address the Union's concerns. These modifications included changes to the provisions relating to shift penalties, overtime, and annual leave loading. The FWC found that these modifications were necessary to ensure that the agreement met the BOOT and the criteria for approval under the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established