Moira Shire Council T/A Moira Shire Council Summary

[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

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.

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.

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.

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.

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.

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.

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.

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.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Moira Shire Council T/A Moira Shire Council sought approval of the Moira Shire Council Enterprise Agreement No. 10 2023 – 2026 from the Fair Work Commission (FWC). The application was made under section 234 of the Fair Work Act 2009, with the Council asserting that the terms of the proposed agreement were fair and reasonable. The dispute centred around whether the agreement met the criteria for approval as stipulated by the legislation, specifically focusing on its compliance with the process outlined in the Act.

The legal issues the court had to determine included whether the agreement had been negotiated in good faith, whether the terms of the agreement were fair and reasonable, and whether the agreement provided for a streamlined process for future negotiations and the resolution of disputes. Additionally, the court examined whether the agreement included appropriate provisions for the protection of employees' rights and interests, and whether it complied with all relevant legislative requirements.

The FWC considered the application and determined that the agreement was fair and reasonable. The court found that the negotiation process was conducted in good faith, and that the terms of the agreement were balanced and appropriate. The agreement was found to include sufficient provisions for the protection of employees' rights and interests, and the court was satisfied that it complied with all legislative requirements. The FWC approved the application, and the agreement was registered under the Act.

The FWC's approval of the Moira Shire Council Enterprise Agreement No. 10 2023 – 2026 signifies that the terms of the agreement are now binding on all parties involved. The agreement provides a framework for the negotiation of future agreements and the resolution of disputes, and it ensures that the rights and interests of employees are protected. The decision serves as a precedent for similar agreements in the future, and it highlights the importance of fair and reasonable terms in employment agreements.

Moira Shire Council T/A Moira Shire Council

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established