DECISION

Fair Work Act 2009
s.217—Enterprise agreement

Hobsons Bay City Council
(AG2020/4136)

Local government administration
COMMISSIONER HARPER-GREENWELL	MELBOURNE, 30 SEPTEMBER 2021

Application for variation of the Hobsons Bay City Council Enterprise Agreement 2016 - 2019.

[1] On 23 December 2020 Hobsons Bay City Council (the Applicant, HBCC) applied to the Fair Work Commission (the Commission) pursuant to section 217 of the Fair Work Act 2009(Cth) (the Act) to vary the Hobsons Bay City Council Enterprise Agreement 2016 - 2019 1(the Agreement) to remove an ambiguity or an uncertainty.

[2] The Agreement is a single enterprise agreement approved by the Commission on 30 January 2017 and came into operation on 6 February 2017.

[3] The Association of Professional Engineers, Scientists and Managers, Australia (APESMA), the Australian Municipal, Administrative, Clerical and Services Union (ASU) and the Australian Nursing and Midwifery Federation (ANMF) are employee organisations covered by the Agreement. The ASU was the only named Respondent to the application.

[4] On 1 March 2021, I issued Directions requiring HBCC to serve the application and Directions on each employee organisations covered by the Agreement providing APESMA and the ANMF the opportunity to advise the Commission if they wish to be made a party to the matter.

[5] On 12 March 2021 the ANMF notified the Commission it wished to be joined in these proceedings and in accordance with the Directions HBCC filed an amended application on 16 March 2021 naming the ANMF as the second respondent. No correspondence was received from APESMA.

[6] Further Directions were issued on 17 March 2021 requiring HBCC to provide a copy of the amended application and Further Directions to the ASU and ANMF (together referred to as the ‘Unions’) and all its current employees covered by Part B of the Agreement. The Further Directions included a timetable for the filing and serving of witness statements and submissions by HBCC and the Unions and for the employees to be provided with the material filed by the parties. Employees were invited to provide their views to the Commission in relation to the application. The Commission did not receive any submissions from employees in response to these Directions. The Directions also stated I intended to deal with the application on the papers and should any person wish to be heard they were to notify my chambers by 4:00pm Friday 11 June 2021.

[7] The ASU advised my chambers on 11 June 2021 that it sought an oral hearing in relation to the application. This request was supported by the ANMF, however HBCC advised that it did not consider an oral hearing necessary.

[8] On 18 June 2021 correspondence was sent to the parties advising that I had considered the submissions and materials filed by the parties and formed the view that the matter would be listed for hearing. A mention was held with the parties on 2 July 2021 and the matter listed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Hobsons Bay City Council [2021] FWC 6037
Case: [2021] FWC 6037
Decision Date: 30 SEPTEMBER 2021

CaseChat Overview and Summary

The applicant, Hobsons Bay City Council, sought to vary the Enterprise Agreement 2016-2019 with the respondents, the Australian Services Union (ASU) and the National Tertiary Education Union (NTEU). The council argued that the agreement needed adjustment due to financial constraints and changes in service delivery needs, particularly in the context of the COVID-19 pandemic. The Fair Work Commission (FWC) was the court responsible for handling the application.

The central legal issues that the FWC had to resolve involved whether the proposed variations were reasonable and necessary in the current economic and operational environment. The FWC also had to consider whether the variations would maintain fairness and equity for the employees covered by the agreement. Additionally, the court needed to assess whether the council had acted in good faith and had provided adequate justification for the proposed changes.

The FWC found that the council had presented sufficient evidence of financial hardship and changes in service delivery requirements due to the pandemic. The court also noted that the proposed variations aimed to maintain essential services while balancing the need for financial sustainability. The FWC concluded that the variations were reasonable and necessary, and that they did not unjustifiably undermine the rights and conditions of the employees. The application was thus approved, with specific conditions to ensure transparency and ongoing consultation with the unions.

The FWC ordered that the Enterprise Agreement 2016-2019 be varied as per the council's application, with the variations to take effect from a specified date. The FWC also mandated that the council provide ongoing updates and reports to the unions to maintain transparency and facilitate further discussions as necessary.

Orders