Moonee Valley City Council

[2024] FWCA 3048

[2024] FWCA 3048

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Moonee Valley City Council

(AG2024/2806)

MOONEE VALLEY CITY COUNCIL ENTERPRISE AGREEMENT 2024 – 2027

Local government administration
COMMISSIONER CONNOLLY	MELBOURNE, 20 AUGUST 2024

Application for approval of the Moonee Valley City Council Enterprise Agreement 2024-2027

1. An application has been made for approval of an enterprise agreement known as the Moonee Valley City Council Enterprise Agreement 2024-2027 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Moonee Valley City Council (the Applicant). The Agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 1 August 2024.

1. The notification time for the Agreement under s.173(2) was 25 August 2023 and the Agreement was made on 17 July 2024.  Accordingly, the genuine agreement requirements the Agreement is to be assessed under are those applying after 6 June 2023 and the better off overall test (BOOT) is that applying on and from 6 June 2023. [1] 

1. On 6 August 2024, the Employer was invited to address aspects of the Agreement including through the provision of an undertaking.

1. In respect of the alleged Notice of Employee Representational Rights (NERR) deficiency I do not believe that the following errors had the effect of disenfranchising any employee who is covered by the proposed Agreement from participation in the bargaining process:

·   The NERR titles the Agreement as ‘Moonee Valley City Council 2021 - 2024’ which is inconsistent with clause 1 of the Agreement which titles the Agreement as ‘Moonee Valley City Council Enterprise Agreement 2024-2027’.

·   The NERR was given to employees on 27/9/2023 which is more than 14 days after notification time of 25/8/2023. This is inconsistent with s.173(3) of the Act.

1. I am satisfied (taking into consideration s.188(5) of the Act and the decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others) that the procedural or technical error is minor and that the employees were not likely to have been disadvantaged, and accordingly, that there has been a genuine agreement.

1. The Applicant has provided written undertakings, dated 7 August 2024, and a copy is attached in Annexure A. A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives did not express any view on the undertaking.

1. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement, thus appearing to meet the requirements of s.190(3). The undertaking is taken to be a term of the Agreement.

1. Pursuant to s.205A(2) of the Act, the workplace delegates’ rights term prescribed by the Victorian Local Government Award 2015[2] is taken to be a term of the Agreement.

1. The “Australian Education Union”, “Australian Municipal, Administrative, Clerical and Services Union” 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) of the Act I note that the Agreement covers these organisations.

1. I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A of the Act as are relevant to this application for approval have been met.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 30 June 2027.

COMMISSIONER

Annexure A

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.

[2] MA000132.

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