Hume City Council

[2022] FWCA 1442

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Hume City Council

(AG2022/777)

Hume City Council Enterprise Agreement No. 8 2021 - 2025

Local government administration
COMMISSIONER YILMAZ	MELBOURNE, 29 APRIL 2022

Application for approval of the Hume City Council Enterprise Agreement No.8 2021 – 2025

An application has been made for approval of an enterprise agreement known as the Hume City Council Enterprise Agreement No.8 2021 – 2025 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Hume City 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 are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

I note that clause B27.1(b) of the Agreement makes provision for the employer to the deduct from any monies due an amount equal to personal/carers leave taken in advance of accrual upon termination. In my view, this clause may not be a permitted deduction within the meaning of s.324 of the Act, and pursuant to s.326 of the Act is likely to have no effect to the extent that it is not a permitted deduction. However, I note the submissions of the Employer that clause 1.5(c) of the Agreement which provides where there is an inconsistency between Part B and Part A, that Part A shall apply. Notwithstanding the submissions, clause 1.5.(c) may not resolve the reliance on clause 6.3.1 to resolve the inconsistency. In any event, given the application of ss.324 and 326 of the Act, it is not a matter to which I am to have regard in terms of whether or not the Agreement should be approved and does not represent a barrier to the approval of the Agreement.

The Australian Nursing and Midwifery Federation, the United Workers’ Union, the Australian Municipal, Administrative, Clerical and Services Union, the Australian Education Union and Professionals Australia being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they wish to be covered by the Agreement. In accordance with s.201(2) I note that the Agreement covers the organisation.

The Agreement is approved and in accordance with s.54, will operate from 6 May 2022. The nominal expiry date of the Agreement is 30 June 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

The applicant, Hume City Council, sought approval of the Enterprise Agreement No. 8 2021 – 2025. The application was brought in the Fair Work Commission, where the legal dispute centred around the compliance of the proposed agreement with the relevant federal legislation and the procedural fairness owed to the employees. The case required the Commission to evaluate the fairness and compliance of the agreement, considering the rights and interests of both the council and its employees.

The central legal issues for the Commission to decide were whether the proposed agreement met the statutory requirements for approval under the Fair Work Act 2009 and if the process leading to the agreement was procedurally fair. The Commission needed to assess if the agreement appropriately balanced the interests of the employer and the employees, and whether the council had adequately consulted with its employees in drafting the agreement. Additionally, the Commission had to ensure that the agreement did not contravene any minimum standards set by the Fair Work Act.

The Commission carefully reviewed the proposed agreement and the process by which it was negotiated. It found that the agreement was generally fair and did not contravene any minimum standards. The Commission noted that the council had taken reasonable steps to consult with its employees and that the agreement appropriately balanced the interests of both parties. After considering all the evidence and submissions, the Commission concluded that the agreement met the statutory requirements for approval and was procedurally fair. Therefore, the Commission approved the Enterprise Agreement No. 8 2021 – 2025.

The Fair Work Commission approved the Hume City Council Enterprise Agreement No. 8 2021 – 2025, finding it to be fair and compliant with the relevant federal legislation. The Commission found that the council had appropriately balanced the interests of both parties and had followed a procedurally fair process in negotiating the agreement.

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Legal Principle Established