Moorabool Shire Council

[2021] FWCA 5373

[2021] FWCA 5373

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Moorabool Shire Council
(AG2021/6467)

MOORABOOL SHIRE COUNCIL ENTERPRISE AGREEMENT NO. 9 2021

Local government administration
DEPUTY PRESIDENT MANSINI	MELBOURNE, 1 SEPTEMBER 2021

Application for approval of the Moorabool Shire Council Enterprise Agreement No. 9 2021.

[1] Moorabool Shire Council has applied for approval of a single enterprise agreement known as the Moorabool Shire Council Enterprise Agreement No. 9 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] Since the application was made, the Commission raised concerns about whether the pre-approval requirements were met, whether the Agreement contravenes s.55 of the Act and whether the Agreement contains the mandatory terms. Further information was provided in relation to these concerns.

[3] The application was accompanied by an Agreement signature page that did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth) (the Regulations) because it did not include the address of each signatory. I consider it appropriate in the circumstances to waive the irregularity in the form or manner in which the application was made and do so pursuant to s.586(b).

[4] The cohort of employees identified on the Applicant’s statutory declaration as covered by the Agreement at the time of the vote included a number of casual employees. The Applicant provided further evidence to satisfy the Commission that:

a) all employees, who were employed at the relevant time(s) 1 and covered by the Agreement, were requested to vote; and
b) of the employees who were requested to vote, a proportion of casual employees did not work a shift in the relevant period, however even if those employees had cast a vote (which is not known) it would have been immaterial to the outcome.

[5] I am satisfied, on the evidence before the Commission, that the impact of the Applicant requesting a broader than strictly eligible cohort of employees to vote was immaterial and does not prevent approval by the Commission. 2

[6] The model flexibility term prescribed by theRegulations is taken to be a term of the Agreement, pursuant to s.202(4) of the Act.

[7] Noting clause 1.6.2 of the Agreement, I am satisfied that the more beneficial entitlements of the National Employment Standards in the Act (NES) will prevail where there is an inconsistency between the Agreement and the NES.

[8] On the basis of the material contained in the application and related materials, 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.

[9] The Australian Municipal, Administrative, Clerical and Services Union, the Australian Nursing and Midwifery Federation and the Association of Professional Engineers, Scientists and Managers, Australia, being bargaining representatives for the Agreement, have respectively given notice under s.183 of the Act. In accordance with s.201(2) I note that the Agreement covers these organisations.

[10] The Agreement was approved on 1 September 2021 and, in accordance with s.54, will operate from 8 September 2021. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1   Appeal by SDA and others [2019] FWCFB 7891.

 2   National Tertiary Education Industry Union v Swinburne University of Technology [2015] FCAFC 98.