Mornington Peninsula Shire Council

[2024] FWCA 3029

[2024] FWCA 3029

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Mornington Peninsula Shire Council

(AG2024/2563)

MORNINGTON PENINSULA SHIRE COUNCIL ENTERPRISE AGREEMENT 2024

Local government administration
COMMISSIONER ALLISON	MELBOURNE, 20 AUGUST 2024

Application for approval of the Mornington Peninsula Shire Council Enterprise Agreement 2024

1. The Mornington Peninsula Shire Council (the Employer) has made an application, pursuant to s.185 of the Fair Work Act 2009 (the Act), for approval of a single enterprise agreement known as the Mornington Peninsula Shire Council Enterprise Agreement 2024 (the Agreement).

1. The following organisations, being bargaining representatives for the Agreement, have each given notice under s.183 of the Act that they want the Agreement to cover them:

   ·the Australian Municipal, Administrative, Clerical and Services Union (ASU),

   ·the Association of Professional Engineers, Scientists and Managers, Australia (Professionals Australia), and

   ·the Australian Nursing and Midwifery Federation (ANMF).

1. In accordance with s.201(2), I note that the Agreement covers the ASU, Professionals Australia and the ANMF.

1. The Notice of Employee Representational Rights (NERR) that was issued to the employees was not in the prescribed form. I am satisfied that this was a minor procedural or technical error and that the employees were not likely to have been disadvantaged by it. Accordingly, I exercise the discretion conferred by s.188(5) of the Act to disregard this error.

1. The following provisions may be inconsistent with the National Employment Standards (NES):

• Clause 27, relating to abandonment of employment, does not specify that an employee is entitled to payment of notice of termination in accordance with s.117 of the Act.
• Clause 27.3 states that termination shall operate from the last attendance at work which appears inconsistent with s.117 of the Act.

• Clause 28.11, relating to circumstances in which redundancy benefits will not apply, may be harsher to employees than the circumstances contemplated in s.123 of the Act.

• Clause 28.12, relating to redundancy and suitable alternative employment may not be as beneficial as s.120 of the Act.

• Clause 44, relating to compassionate leave, does not provide an entitlement to compassionate leave in circumstances where a child is stillborn or there is a miscarriage, inconsistent with s.104 and s.105 of the Act.

1. However, noting clause 6 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.

1. The Agreement is silent in relation to casual minimum engagement. The Employer provided an undertaking that casual employees shall be engaged for a minimum of two hours, with the exceptions of Children’s Crossing Supervisors, and casual Branch Library and Mobile Library employees. Children’s Crossing Supervisors have a minimum engagement of one hour in accordance with clause 10.5(c)(ii) of the Victorian Local Government Award 2015. Casual Branch Library and Mobile Library employees have a minimum engagement of three hours, in accordance with Appendix 6.

1. The Agreement is silent on rates of pay for apprentices. The Employer provided an undertaking that apprentices will be classified in accordance with the Agreement, to resolve this issue.

1. 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.

1. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 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 27 August 2024. The nominal expiry date of the Agreement is 31 December 2026.

COMMISSIONER

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Annexure A