Maribyrnong City Council

[2016] FWCA 7870

[2016] FWCA 7870

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Maribyrnong City Council
(AG2016/5784)

MARIBYRNONG CITY COUNCIL ENTERPRISE AGREEMENT 2016

Local government administration
COMMISSIONER ROE	MELBOURNE, 4 NOVEMBER 2016

Application for approval of the Maribyrnong City Council Enterprise Agreement 2016.

[1] An application has been made for approval of an enterprise agreement known as the Maribyrnong City Council Enterprise Agreement 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the Maribyrnong City Council. The Agreement is a single enterprise agreement.

[2] A written submission was received on 7 October 2016 from an employee who will be covered by the Agreement, Mr Butler. Mr Butler said that his views were representative of a number of other Australian Municipal, Administrative, Clerical and Services Union (ASU) involved members and staff of the Maribyrnong Aquatic Centre (MAC). A further written submission from Mr Butler was received on 18 October 2016. Several verbal submissions were also made between 6 October 2016 and 26 October 2016.

[3] Mr Butler’s main contention was that the ASU and the Maribyrnong City Council (the Council) did not engage in fair bargaining in considering the claims of the MAC group of employees for the proposed Agreement. It therefore raised the issue of whether employees had genuinely agreed to the agreement in accordance with s.188 of the Act.

[4] The initial and additional written submissions were distributed to the Council and the ASU on 19 October 2016. The parties were requested to respond to the issues raised in those submissions and the question of whether genuine agreement had been reached. Both the Council and the ASU provided their submissions on 25 October 2016.

[5] I have considered these submissions in response to the question as to whether or not there has been genuine agreement.

[6] The question of genuine agreement is dealt with in s.188 of the Act as follows:

“An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that:
(a) the employer, or each of the employers, covered by the agreement complied with the following provisions in relation to the agreement:

(i) subsections 180(2), (3) and (5) (which deal with pre-approval steps);

(ii) subsection 181(2) (which requires that employees not be requested to approve an enterprise agreement until 21 days after the last notice of employee representational rights is given); and

(b) the agreement was made in accordance with whichever of subsection 182(1) or (2) applies (those subsections deal with the making of different kinds of enterprise agreements by employee vote); and

(c) there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees.”

[7] In my view, there is no question that the requirements of s.188(a) and (b) have been met. The matter in contention is 188(c). In a vote for an enterprise agreement it will be commonplace for the minority to be outvoted by the majority, that is it will be common place for a group of employees to feel that their interests have not been adequately been met but for the agreement to still be made by the majority.

[8] Where there are concerns during enterprise bargaining about the fairness of the process, applications can be made for the Fair Work Commission (the Commission) to assist with the bargaining, or to make scope orders, or to make good faith bargaining orders. These are the mechanisms under the legislation which are available to address issues of fairness in bargaining. The fact that there are allegations of unfairness during the bargaining process will not automatically mean that there has not been genuine agreement.

[9] I have not been provided with any evidence which satisfied me that the employees were ignorant or misinformed about what they were being asked to vote on. I believe that this is a situation where a group of employees sought provisions in an agreement but were not successful in getting the employer to accept all of the provisions they sought through the negotiation process. It is not the role of the Commission to interfere in such an outcome or to pass judgement on the merits of particular claims or the decisions of bargaining representatives in prioritising matters to be pursued or compromises to be made. I am therefore satisfied that there are no other reasonable grounds for believing that the agreement was not genuinely agreed to by the employees.

[10] Once I had considered the submissions and advised the dissenting employee, Mr Butler, about my preliminary view on the matter of genuine agreement, Mr Butler then raised issues concerning the Better off Overall Test (BOOT). The relevant Award for this group of employees, and for most of those covered by the Agreement, is the Modern Award, the Victorian Local Government Award 2015. The rates of pay under the Agreement for those who work in the Aquatic Centre are up to 90% above the Modern Award rate. There are a number of other matters where the Agreement is superior to the Award including paid parental leave, personal leave, and redundancy. The issues in contention as far as Mr Butler is concerned relate to rest breaks and the minimum engagement period. The minimum engagement period of one hour is the same as that in the Award. Mr Butler does not take issue with this fact. The Award does not include any entitlement to rest breaks so the Agreement provision of a 15 minute break for a 5 hour shift is superior to the Award.

[11] I am satisfied from the submissions and documents provided by the ASU and the Council that the ASU conducted a thorough process of consultation with its members about priorities for the bargaining of the Agreement. I am also satisfied that the issues of concern to the MAC employees were raised during the bargaining by the ASU but the Council did not make concessions on these matters. The members as a whole rejected the Council offer in August and sought some changes to the redundancy provisions. Further negotiations occurred on that issue and some changes were negotiated. The revised Agreement was endorsed by a valid majority.

[12] Mr Butler submitted that the rest break provision was inferior to the current 2013 agreement. The Council submitted that the Agreement does not change the rest break provisions to the detriment of employees when compared to the current 2013 agreement. I am inclined to agree with the Council but it is not necessary to determine this question as the BOOT applies to the Award and not to the current agreement. The issues of custom and practice are not generally relevant to the BOOT.

[13] Mr Butler presented his views in a professional manner and I do not doubt that he, and those who support his views, has genuine concerns about the importance of adequate rest breaks for those who work in the aquatic centre. However, I am satisfied that the ASU and the Council engaged in a fair bargaining process and that the outcome that process was genuinely agreed to by the affected employees and that the outcome results in each employee being better off overall at the test time than they would be under the Award.

[14] I am satisfied that the agreement otherwise meets the statutory requirements for approval, including the BOOT.

[15] The Applicant 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.

[16] 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.

[17] The Australian Municipal, Administrative, Clerical and Services Union, the Australian Nursing and Midwifery Federation and the Association of Professional Engineers, Scientists and Managers, Australia, 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 these organisations.

[18] The Agreement was approved on 4 November 2016 and, in accordance with s.54, will operate from 11 November 2016. The nominal expiry date of the Agreement is 30 June 2019.

COMMISSIONER

Appearances:

Mr M Butler for himself

Mr Miller SC for Maribyrnong City Council

Hearing details:

2016.

Melbourne:

November 4

Printed by authority of the Commonwealth Government Printer

<Price code T, AE421976  PR587066>

ANNEXURE A