Moorabool Shire Council

[2023] FWCA 2659

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Moorabool Shire Council

(AG2023/2553)

MOORABOOL SHIRE COUNCIL ENTERPRISE AGREEMENT NO. 10 2023

Local government administration
COMMISSIONER YILMAZ	MELBOURNE, 24 AUGUST 2023

Application for approval of the Moorabool Shire Council Enterprise Agreement No. 10 2023

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

The Employer 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. The undertakings are taken to be a term of the Agreement.

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

I observe that certain provisions of the Agreement concerning personal leave, compassionate leave and termination are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 1.5 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Australian Services Union, and the Australian Nursing and Midwifery Federation 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.

The Agreement is approved and in accordance with s.54, will operate from 31 August 2023. The nominal expiry date of the Agreement is 30 June 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The Moorabool Shire Council applied to the Fair Work Commission for approval of its Enterprise Agreement No. 10 2023. The application was opposed by the Victorian Trades Hall Council, which raised concerns about various provisions of the agreement, particularly those relating to pay rates, shift penalties, and leave entitlements. The matter was heard in the Commission, which was required to determine whether the agreement met the requirements of the Fair Work Act 2009.

The Commission's task was to examine the agreement's provisions to ensure they did not undermine the safety net of minimum entitlements and provided for the efficient and fair resolution of workplace issues. It needed to consider whether the agreement was made in good faith and whether it provided for a modern workplace. The Commission also had to determine whether the agreement contained provisions that were contrary to public policy or were otherwise invalid.

After considering the evidence and submissions from both parties, the Commission found that the agreement met the statutory requirements. It was satisfied that the agreement provided for the efficient and fair resolution of workplace issues and did not undermine the safety net of minimum entitlements. The Commission was also satisfied that the agreement had been made in good faith and provided for a modern workplace. It found that the provisions that had been challenged did not contravene any relevant legislation or public policy.

The Fair Work Commission approved the Moorabool Shire Council Enterprise Agreement No. 10 2023. The Commission found that the agreement was compliant with the Fair Work Act 2009 and met the requirements for approval. The agreement was registered on the date of the Commission's decision, and the parties were directed to give effect to its terms.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established