Macedon Ranges Shire Council

[2019] FWCA 5972

[2019] FWCA 5972

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Macedon Ranges Shire Council
(AG2019/2593)

MACEDON RANGES SHIRE COUNCIL ENTERPRISE AGREEMENT 2019

Local government administration
COMMISSIONER HARPER-GREENWELL	MELBOURNE, 28 AUGUST 2019

Application for approval of the Macedon Ranges Shire Council Enterprise Agreement 2019.

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

[2] 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. Pursuant to s.201(3), the undertakings are taken to be a term of the Agreement.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187 and 190 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[4] Employees were provided with an access period of six clear days rather than seven clear days as required by the Act. Nevertheless, in the circumstances, I am satisfied that this constitutes a minor procedural or technical error for the purposes of s.188(2)(a). Further, having regard to the content of the statutory declaration I am satisfied that the employees covered by the agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188(2) of the Act.

[5] I observe that Appendix A A3.1.1, Part B clause 41.7 and Part B clause 42.7 of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting Part A Clause 5 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.

[6] The Australian Municipal, Administrative, Clerical and Services Union and the Australian Nursing and Midwifery Federation, being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the organisations.

[7] The Agreement was approved on 28 August 2019 and, in accordance with s.54, will operate from 4 September 2019. The nominal expiry date of the Agreement is 30 June 2022.

COMMISSIONER

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Annexure A