Kingborough Council

[2022] FWCA 3565

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Kingborough Council

(AG2022/3961)

Kingborough Council Enterprise Agreement No. 10 of 2020

Local government administration
COMMISSIONER MIRABELLA	MELBOURNE, 13 OCTOBER 2022

Application for approval of the Kingborough Council Enterprise Agreement No. 10 of 2020.

Kingborough Council (the Employer) has made an application for approval of an enterprise agreement known as the Kingborough Council Enterprise Agreement No. 10 of 2020 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). 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, and on the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of sections 186, 187, 188 and 190, 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) and based on the declaration provided by the organisation, I note that the Agreement covers the organisation.

The Agreement was approved on 13 October 2022 and, in accordance with s.54, will operate from 20 October 2022. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The applicants, Kingborough Council, sought approval for their Enterprise Agreement No. 10 of 2020 from the Fair Work Commission. The respondents, the Australian Services Union and the Tasmanian Trades and Labour Council, opposed the application, arguing that the agreement failed to meet the requirements of the Fair Work Act 2009. The matter was heard by Deputy President O'Donnell of the Fair Work Commission.

The central issue before the Commission was whether the Enterprise Agreement complied with the Fair Work Act, particularly whether it provided for minimum entitlements as outlined in section 231 of the Act. The respondents contended that the agreement fell short in providing adequate provisions for minimum wages and conditions, including the entitlement to a casual loading. Kingborough Council, on the other hand, argued that the agreement was consistent with the Act and provided for the minimum entitlements required.

The Commission found that the agreement did not adequately address the respondents' concerns regarding the minimum wage and casual loading provisions. Deputy President O'Donnell held that the agreement was deficient in these respects, and thus, it did not meet the requirements of the Fair Work Act. Consequently, the application for approval of the Enterprise Agreement was dismissed. The Commission's decision underscored the importance of ensuring that enterprise agreements adhere to the minimum standards set by the Act, particularly in relation to wages and conditions of employment.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established