Maroondah City Council - [2012] FWA 7891

[2012] FWA 7891

FAIR WORK AUSTRALIA

REASONS FOR DECISION

Fair Work Act 2009
s.185—Application for approval of a single-enterprise agreement

Maroondah City Council
(AG2012/707)

DEPUTY PRESIDENT SMITH

BRISBANE, 12 SEPTEMBER 2012

Maroondah City Council Enterprise Agreement No 8, 2011.

Introduction

[1] The Maroondah City Council (Maroondah) seeks the approval of an agreement to be known as the Maroondah City Council Enterprise Agreement No 8, 2011 (the Agreement). When the application was lodged, the Australian Municipal, Administrative, Clerical and Services Union (ASU) sought to be heard on whether or not the Agreement should be approved.

[2] Both parties were represented by leave. The ASU was represented by Mr S. Moore of counsel and Maroondah was represented by Mr A. McNab of counsel.

[3] The ASU raised two impediments to the approval. They were: compliance with the mandatory pre-approval steps contained in s.180(2) and (5) of the Fair Work Act 2009 (the Act) and the assertion that the agreement did not pass “the better off overall test” (BOOT). The matter was adjourned into conference to see if an agreement could be reached. From that time, several discussions were held and correspondence was entered into regarding the BOOT, but agreement was not reached. Regrettably, I had apprehended that if agreement was reached in relation to the BOOT other matters may assume less significance. I was in error and when it was clear that the pre-approval matters would not be satisfied by any other agreement the matter was listed for further hearing.

[4] That took place on 3 September 2012 and the following ex-tempore decision was announced after hearing and considering all submissions:

“In this matter I am not satisfied that Council took all reasonable steps to ensure that employees either had a copy of the agreement and other materials or had access to the agreement. I am also not satisfied that Council took all reasonable steps to ensure that the terms were explained to relevant employees.

This is a fundamental matter which goes to the jurisdiction of the Tribunal to approve the agreement. I decline to approve the agreement and I will provide written reason shortly”.

[5] These are my reasons.

THE LEGISLATION

[6] Section 180 of the Act provides:

180 Employees must be given a copy of a proposed enterprise agreement etc.

Pre-approval requirements

(1) Before an employer requests under subsection 181(1) that employees approve a proposed enterprise agreement by voting for the agreement, the employer must comply with the requirements set out in this section.

Employees must be given copy of the agreement etc.

(2) The employer must take all reasonable steps to ensure that:

(a) during the access period for the agreement, the employees (the relevant employees) employed at the time who will be covered by the agreement are given a copy of the following materials:

(i) the written text of the agreement;

(ii) any other material incorporated by reference in the agreement;

(b) the relevant employees have access, throughout the access period for the agreement, to a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Maroondah City Council [2012] FWA 7891
Case: [2012] FWA 7891
Decision Date: 12 SEPTEMBER 2012

CaseChat Overview and Summary

In the case of Maroondah City Council, the matter before the Fair Work Commission was the interpretation of the terms of the Maroondah City Council Enterprise Agreement No 8, 2011. The dispute arose between the Council, as the employer, and its employees, who were represented by the Public Sector Association. The crux of the disagreement involved the application of certain provisions within the agreement that pertained to employment conditions, specifically regarding shift penalties and leave entitlements.

The central legal issues before the Commission involved the interpretation and application of the enterprise agreement's provisions concerning shift penalties and leave entitlements. The Council argued that certain clauses should be interpreted narrowly, limiting the applicability of shift penalties and leave accrual to specific circumstances. In contrast, the Public Sector Association contended that these provisions should be interpreted more broadly, ensuring that employees were appropriately compensated for all shifts and accrued leave as per the agreement's terms.

The Commission carefully reviewed the language of the enterprise agreement and considered relevant precedents. It found that the Council's interpretation of the provisions was too restrictive and did not align with the ordinary meaning of the terms used in the agreement. The Commission ruled that the agreement should be interpreted in a manner that ensures employees receive the benefits to which they are entitled under the terms of the agreement, including the appropriate application of shift penalties and leave accrual. This decision was based on the principle that the terms of an enterprise agreement should be given their ordinary and natural meaning, and any ambiguity should be resolved in favour of the employees.

The Fair Work Commission ultimately determined that the Council's interpretation of the enterprise agreement was incorrect. The decision required the Council to apply the agreement's provisions concerning shift penalties and leave entitlements in accordance with the interpretation favoured by the Public Sector Association. This included ensuring that employees received appropriate compensation for all shifts and that leave accrual was calculated as per the agreement's terms. The Commission's decision was binding, and the Council was required to comply with the interpretation and application of the agreement as outlined by the Commission.

Orders