Latrobe City Council

[2024] FWCA 4445

[2024] FWCA 4445

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Latrobe City Council

(AG2024/4659)

LATROBE CITY COUNCIL ENTERPRISE AGREEMENT 2024 (NO. 10)

Local government administration
COMMISSIONER REDFORD	MELBOURNE, 17 DECEMBER 2024

Application for approval of the Latrobe City Council Enterprise Agreement 2024 (No. 10)

1. An application has been made for approval of an enterprise agreement known as the Latrobe City Council Enterprise Agreement 2024 (No. 10) (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Latrobe City Council. The Agreement is a single enterprise agreement.  

Casual employees.  

1. The F17B Declaration filed by Latrobe in support of the application indicates that the agreement will cover 762 employees, of whom 185 are casual. However, in reply to correspondence from my chambers, Latrobe confirmed that in fact, there are 299 casual employees who will be covered by the agreement. It was further confirmed that only 185 of these employees worked for Latrobe during the access period prior to the vote about the proposed agreement and were considered eligible to participate in that vote.

1. Taking into account the decision of a Full Bench of this Commission in Appeal by Kmart Australia Limited & Ors[1] I am satisfied that Latrobe’s approach to the vote of employees concerning the Agreement was consistent with the requirements of s 181(1) of the Act.

Undertakings 

1. In response to several issues raised with Latrobe City Council in relation to its application, it has provided written undertakings, a copy of which are 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.  

1. The undertakings relate to:   

a.Shift allowances

b.Annualised salaries

Interaction with the National Employment Standards 

1. Clause 5.4 of the Agreement provides that the National Employment Standards (NES) applies to employees covered by the agreement except where the agreement provides a more favourable outcome (NES precedence clause). On this basis, I am satisfied that the apparent inconsistencies with the NES outlined below do not prevent the approval of this agreement:

a.Personal/Carers leave – notice requirements: clause 38.1.6 of the Agreement, which provides for the manner in which employees should give notice of the use of personal/carers’ leave, should be read in conjunction with s 107(2)(a) of the Act.

b.Compassionate leave: Clause 38.3.3 of the Agreement provides for compassionate leave, however it is silent in relation to the entitlement in circumstances when an employee, their spouse, or de facto partner has a miscarriage or gives birth to a stillborn child. Section 104(1)(c) of the Act provides for compassionate leave in these circumstances. On the basis of the NES precedence clause, the superior entitlement provided for in the NES will apply.

c.Clause 16.2.4 of the Agreement provides for a severance entitlement equivalent to two weeks pay for each year of completed service – s 119 of the Act provides for a severance entitlement which, depending on an employee’s period of service, may provide an entitlement to more than two weeks pay for each year of completed service in some circumstances. Where relevant, on the basis of the NES precedence clause, the superior entitlement provided for in the NES will apply.

d.Abandonment of employment: while clause 14.4 of the Agreement deals with circumstances in which an employee may be said to have abandoned their employment, the effect of the NES precedence clause will be to ensure that employees in those circumstances would be entitled to notice of termination in accordance with s 117 of the Act.

e.Withholding of NES entitlements where insufficient notice is provided: Clause 14.2.2 of the Agreement provides for the withholding of monies in circumstances where an employee has given insufficient notice of resignation. This clause appears to permit the employer to deduct monies from employee’s entitlements under the NES (such as notice of termination, accrued but unused annual leave or long service leave on termination). Accordingly, this clause may be inconsistent with Chapter 2 Part 2.2 Division 2 of the Act however, when read in conjunction with the NES precedence clause (clause 8(a)) will have no effect to the extent of any inconsistency.

f.Family and Domestic Violence Leave: to the extent that clause 41.14.1 of the Agreement purports to exclude casual employees from an entitlement to paid family and domestic violence leave, such exclusion is ineffective, taking into account the entitlement (which includes casuals) provided for at s 106A of the Act.

Consideration 

1. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met. 

1. The Australian Municipal, Administrative, Clerical & Services Union Vic/Tas Authorities and Services Branch (ASU) and the Australian Nursing and Midwifery Federation (ANMF) being bargaining representatives 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) I note that the Agreement covers the ASU and the ANMF.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate 7 days after approval.

COMMISSIONER

ANNEXURE A

[1] [2019] FWCFB 7599

Printed by authority of the Commonwealth Government Printer

<AE527203  PR782376>