Moira Shire Council T/A Moira Shire Council

[2024] FWCA 1500

[2024] FWCA 1500

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Moira Shire Council T/A Moira Shire Council

(AG2024/1225)

MOIRA SHIRE COUNCIL ENTERPRISE AGREEMENT NO. 10 2023 –2026

Local government administration
COMMISSIONER JOHNS	MELBOURNE, 23 APRIL 2024

Application for approval of the Moira Shire Council Enterprise Agreement No. 10 2023 – 2026

1. An application has been made for approval of an enterprise agreement known as the Moira Shire Council Enterprise Agreement No. 10 2023 – 2026 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Moira Shire Council T/A Moira Shire Council. The Agreement is a single enterprise agreement.

1. The Agreement title on the NERR provided to the employees is ‘Moira Shire Council Enterprise Agreement Number 10, 2023 – 2026’ whilst clause 1 of the Agreement title is ‘Moira Shire Council Enterprise Agreement No. 10 2023 – 2026’. I am satisfied that in all of the circumstances and having regard to the Full Bench decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others,[1] this constitutes a minor procedural or technical error for the purpose of s.188(5) of the Act. Further, I am satisfied that the employees covered by the Agreement were not likely to be disadvantaged by the error.

1. An assessment of the Agreement has identified two clauses that may be inconsistent with the National Employment Standards (NES).  In particular, the terms relating to:

a)Clause 18.2.2 (Part B): Withholding of NES entitlements; and

b)Clause 39.1.1 (c) (Part B): Personal/carers leave – notice requirements.

1. Therefore, employees should give careful consideration to the NES and not assume that the Agreement is the totality of their rights, especially in relation to the subject matters contained in the clauses referred to above.

1. Noting the NES precedence clause (clause 5.3), to the extent that any clause in the Agreement is inconsistent with the NES, it is not an impediment to the approval of the Agreement.

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

1. The Australian Nursing and Midwifery Federation and the Australian Municipal, Administrative, Clerical and Services Union 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.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 30 April 2024. The nominal expiry date of the Agreement is 30 June 2026.

COMMISSIONER

[1] [2019] FWCFB 318.

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