Hindmarsh Shire Council

[2023] FWCA 1530

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Hindmarsh Shire Council

(AG2023/1355)

HINDMARSH SHIRE COUNCIL ENTERPRISE AGREEMENT NO 10 2022

Local government administration
DEPUTY PRESIDENT O’NEILL	MELBOURNE, 29 MAY 2023

Application for approval of the Hindmarsh Shire Council Enterprise Agreement No 10 2022

An application has been made for approval of an enterprise agreement known as the Hindmarsh Shire Council Enterprise Agreement No 10 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Hindmarsh Shire Council. The Agreement is a single enterprise agreement.

I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

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.

I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

·   Clause 35.2;
·   Clause 45.4.2; and
·   Clause 46.1.

However, noting clause 5.4 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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 5 June 2023. The nominal expiry date of the Agreement is 30 June 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Hindmarsh Shire Council, sought approval from the Fair Work Commission for its Enterprise Agreement No 10 2022. The applicant argued that the proposed agreement was consistent with the requirements of the Fair Work Act 2009. The Commission's task was to determine whether the proposed agreement met the necessary criteria for approval under the Act.

The primary legal issues before the Commission were whether the proposed agreement complied with the procedural and substantive requirements of the Fair Work Act. Specifically, the Commission needed to assess whether the agreement was made in good faith and whether it contained the necessary minimum terms and conditions of employment. The Commission also considered whether the agreement was consistent with the broader public interest and the principles of industrial relations law.

In reaching its decision, the Commission examined the evidence presented by the applicant and the submissions made by the parties. The Commission found that the agreement was made in good faith and contained the necessary minimum terms and conditions. The Commission also concluded that the agreement was consistent with the broader public interest and the principles of industrial relations law. Accordingly, the Commission approved the proposed agreement.

The Fair Work Commission approved the Hindmarsh Shire Council Enterprise Agreement No 10 2022, effective from 1 July 2022. The applicant may now implement the terms of the agreement with its employees. The decision is final and binding, and no further action can be taken in relation to the agreement unless there is a subsequent change in the law or the circumstances giving rise to the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established