Mornington Peninsula Shire Council

[2021] FWCA 4265

[2021] FWCA 4265

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Mornington Peninsula Shire Council
(AG2021/5932)

MORNINGTON PENINSULA SHIRE COUNCIL ENTERPRISE AGREEMENT 2021

Local government administration
COMMISSIONER LEE	MELBOURNE, 19 JULY 2021

Application for approval of the Mornington Peninsula Shire Council Enterprise Agreement 2021.

[1] An application has been made for approval of an enterprise agreement known as the Mornington Peninsula Shire Council Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Mornington Peninsula Shire Council (the Applicant). The Agreement is a single enterprise agreement.

[2] 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.

[3] 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.

[4] Appendix 11 of the Agreement incorporates the Nurses (ANMF—Victorian Local Government) Award 2015 (the Award). I note that the employer did not take all reasonable steps to ensure that during the access period for the Agreement, the relevant employees employed at the time who will be covered by the Agreement were given a copy of, or access to the Award in accordance with s.180(2) of the Act. The Applicant made submissions in relation to this error which I have considered. In summary, the Applicant indicated that employees were not provided with a copy of the Award, but that this was a minor procedural error, and the employees were not likely to have been disadvantaged by the error for the following reasons:

•  This procedural error is only relevant to the entitlements of nursing employees covered by the Agreement because Appendix 11 and the Award only applies to them.

•  The nursing employees make up a very small percentage of the employees covered by the Agreement.

•  The nursing employees were well represented in bargaining for the Agreement with two employee representatives and three union representatives negotiating on their behalf.

•  The relevant employees are currently covered by the Mornington Peninsula Shire Council Nurses Enterprise Agreement 2017 and the negotiation for the Agreement built on these entitlements.

•  While the Awardis incorporated into the Agreement, the majority of entitlements are set out in the Agreement itself.

•  The Agreement provides for entitlements that are equal to or more generous than the Award.

•  The Award is a publicly available document.

•  There overwhelming majority of employees voted to approve the Agreement.

[5] The bargaining representatives for the Agreement were given an opportunity to respond to these submissions. The bargaining representatives did not advise of any concerns. I am satisfied having regard to the submissions of the Applicant and the principles set out in the Full Bench decision in Huntsman Chemical Company Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Others 1that the above matter constitutes a minor procedural or technical error for the purposes of s.188(2)(a). Further, I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error.

[6] Accordingly, notwithstanding the matter identified in paragraph [4], I am satisfied that the Agreement has been genuinely agreed to by the employees covered by the Agreement within the meaning of s.188 of the Act.

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

[8] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

•  Clause 24.4 – Notice of Termination.

•  Clause 41.14 – Annual Leave.

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.

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 27 July 2021. The nominal expiry date of the Agreement is 31 December 2023.

COMMISSIONER

Annexure A

 1   [2019] FWCFB 318.

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