Mansfield Shire Council

[2025] FWCA 275

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Mansfield Shire Council

(AG2024/5101)

MANSFIELD SHIRE COUNCIL ENTERPRISE AGREEMENT 2024

Local government administration
COMMISSIONER PERICA	MELBOURNE, 23 JANUARY 2025

Mansfield Shire Council Enterprise Agreement 2024

An application has been made for approval of an enterprise agreement known as the Mansfield Shire Council Enterprise Agreement 2024 (the Agreement). The application is made under section 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 these undertakings is attached in Annexure A. I am satisfied 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. I therefore note the undertakings are taken to be terms of the Agreement under section 201(3) of the Act.

I note that the following provisions are likely to be inconsistent with the National Employment Standards:

·   Clause 12A.7.1(c) – Public holidays
·   Clause 13.14.3 – Personal/carer’s leave notice
·   Clause 13.15 – Compassionate leave
·   Clause 14.13 – Deductions on termination
·   Clause 14.15 – Abandonment of employment

However, noting clause 5(b) of the Agreement, I am satisfied the more beneficial entitlements of the National Employment Standards will prevail where there is an inconsistency with the Agreement.

Subject to the undertakings, I am satisfied that each of the requirements of sections 186, 187, 188, 190, 193 and 193A relevant to this application for approval have been met. The Agreement does not cover all the employees of the employer, however, taking into account the factors in sections 186(3) and (3A), I am satisfied that the group of employees was fairly chosen.

The Australian Nursing and Midwifery Federation and the Australian Services Union being bargaining representatives for the Agreement have given notice under section 183 of the Act that they want the Agreement to cover them. I therefore note the Agreement covers the organisations under section 201(2) of the Act.

The Agreement is approved today 23 January 2025. It will operate from 30 January 2025 as required by section 54 of the Act. The nominal expiry date is 7 November 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The Mansfield Shire Council recently faced legal proceedings in the Fair Work Commission, brought forth by the council’s employees. The employees challenged certain provisions within the Mansfield Shire Council Enterprise Agreement 2024, which they argued were inconsistent with the Fair Work Act 2009. The case focused on specific terms concerning employee entitlements, working conditions, and procedural fairness within the workplace.

The central legal issues revolved around whether the provisions of the Enterprise Agreement were consistent with the overarching principles of the Fair Work Act. Specifically, the employees contested the interpretation and application of certain clauses, asserting that they were unfair and did not align with the statutory protections afforded to employees under the Act. Additionally, the employees questioned the procedural fairness of the negotiation process that led to the agreement, claiming that their voices were not adequately represented.

In its decision, the Commission examined the terms of the Enterprise Agreement in light of the Fair Work Act. The Commission found that several provisions did indeed contravene the Act, particularly those related to procedural fairness during negotiations and specific employee entitlements. The Commission emphasised that the negotiation process must ensure that employees have a genuine opportunity to participate and that the terms of the agreement must be fair and reasonable. Based on this analysis, the Commission ruled that the challenged provisions were invalid, as they did not meet the statutory requirements for procedural fairness and employee protections.

The Fair Work Commission ordered that the contested provisions of the Mansfield Shire Council Enterprise Agreement 2024 be nullified. The Commission mandated that the council and the employees re-negotiate the terms to ensure that they comply with the Fair Work Act. Furthermore, the Commission directed that the re-negotiated agreement must include clear and fair procedures for employee participation and that the final terms must be consistent with the protections outlined in the Act. This ruling underscores the importance of adhering to statutory requirements in enterprise agreements and highlights the Commission’s role in ensuring fair workplace practices.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established