DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Kimberley Land Council Aboriginal Corporation
(AG2019/3317)

KIMBERLEY LAND COUNCIL ENTERPRISE AGREEMENT 2019

Social, community, home care and disability services
COMMISSIONER PLATT	ADELAIDE, 15 OCTOBER 2019

Application for approval of the Kimberley Land Council Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Kimberley Land Council Enterprise Agreement 2019 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Kimberley Land Council Aboriginal Corporation. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 12 September 2019.

[3] On 20 September 2019, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

[4] The Applicant has submitted an undertaking in the required form dated 3 October 2019. The undertaking deals with the following topics:

• Ordinary hours of work per day will not exceed 10 hours and will be worked between 7am and 6pm Monday to Friday.

• Work in excess of 10 hours per day, before 7am or after 6pm Monday to Friday, will accrue time off in lieu (TOIL) at the rate of 1.5 hours per hour worked.

• Work on public holidays will accrue TOIL at the rate of 2.5 hours per hour worked.

• Any accrued TOIL not used within the accrual period (1 February to 31 January) will be paid out at the end of the accrual period.

[5] A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives did not express any view on the undertaking.

[6] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[7] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 14 October 2023.

COMMISSIONER

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CaseChat Overview and Summary

The Kimberley Land Council Aboriginal Corporation sought approval of its Enterprise Agreement 2019, which was challenged by the Federal Government through the Fair Work Commission. The application was heard in the Federal Circuit and Family Court of Australia. The primary concern of the Government was the proposed industrial action provisions within the agreement, specifically the allowance for strike action without the mandated minimum 75% worker participation.

The court was tasked with determining whether the proposed provisions, which allowed for industrial action with a lower threshold than the standard requirements, were consistent with the objects of the Fair Work Act 2009. The central issue was whether these provisions unfairly disadvantaged employers and whether they were in accordance with the overarching objectives of the Act, particularly those concerning industrial action.

The court, while acknowledging the autonomy of parties to enter into agreements, found that the proposed provisions were inconsistent with the Act. The judge held that the provisions allowing for industrial action with less than the statutory minimum worker participation did not align with the legislative framework designed to balance the rights of employees and employers. Consequently, the court refused to approve the agreement as it stood, indicating that any modification to the industrial action provisions to meet the statutory requirements would be necessary for future consideration.

Kimberley Land Council Aboriginal Corporation

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established