Kingborough Council

[2023] FWCA 2637

[2023] FWCA 2637

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Kingborough Council

(AG2023/2719)

KINGBOROUGH COUNCIL ENTERPRISE AGREEMENT NO. 11 OF 2023

Local government administration
COMMISSIONER CIRKOVIC	MELBOURNE, 21 AUGUST 2023

Application for approval of the Kingborough Council Enterprise Agreement No. 11 of 2023

1. An application has been made for approval of an enterprise agreement known as the Kingborough Council Enterprise Agreement No. 11 of 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Kingborough Council (the Employer). The Agreement is a single enterprise agreement.

1. I am satisfied that each of the requirements of ss.186, 187 and 188 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.

1. I observe that certain provisions of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 4.3 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.

1. I note that clause 28.6 of the Agreement makes provision for the employer to deduct leave taken in advance where the entitlement to that leave has not accrued as at the date of termination from the Employee’s termination payments. Further, clause 34(c)(ii) states the employer may deduct from any money due to the employee on termination an amount equal to the amount that was paid to the employee in respect of any long service leave taken in advance.

1. In my view, these clauses may not be permitted deductions 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, notwithstanding my views on that, 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.

1. The Australian Services’ Union (ASU) being a bargaining representative for the Agreement, has given notice under s 183 of the Act that it seeks to be covered by the Agreement.  In accordance with s 201(2) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

1. The Agreement was approved on 21 August 2023 and, in accordance with s 54, will operate from 28 August 2023. The nominal expiry date of the Agreement is 30 June 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE521191 PR765370>