Northern Grampians Shire Council

[2022] FWCA 1397

[2022] FWCA 1397

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Northern Grampians Shire Council

(AG2022/1077)

Northern Grampians Shire Council Enterprise Agreement (9) 2021

Local government administration
COMMISSIONER CIRKOVIC	MELBOURNE, 28 APRIL 2022

Application for approval of the Northern Grampians Shire Council Enterprise Agreement (9) 2021

1. Northern Grampians Shire Council (the Applicant) has made an application for approval of an enterprise agreement known as the Northern Grampians Shire Council Enterprise Agreement (9) 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 13 April 2022.

1. On 13 April 2022, my Chambers sent correspondence to the parties seeking to address concerns with certain aspects of the Agreement and invited the parties to address these matters. The concerns were as follows:

· The Agreement was not lodged within 14 days after it was made. Pursuant to s.185(3)(b) of the Act I consider it fair to extend the time for making this application to 11 April 2022.

·  Chambers sought and received clarification as to method voting notification details were provided to employees to ensure agreement pre-approval requirements were met.

·  Clause 9.1.8 of the Agreement contained a shiftworker definition inconsistent with clause 26.1(b) of the Nurses (ANMF) Award.

·  Clause 3.11 of the Agreement does not contain the requirement that a copy of any IFA agreed to must be given to the employee within 14 days after it is agreed to. This appears to be inconsistent with s.203(7)(b) of the Act. 

·  Clauses 13.2 regarding withholding of NES entitlements, 9.5.7 regarding personal/carer’s leave and clauses 12.1.10 & 12.2.4  regarding redundancy may be inconsistent with the National Employment Standards (NES) however the NES precedence term at clause 1.4 of the Agreement is deemed to resolve these NES inconsistencies.

1. The Applicant has submitted an undertaking in the required form dated 21 April 2022.  The undertaking deals with the following topics:

·   The Applicant provided the definition of a shift worker for the purposes of the National Employment Standards (NES) for both nursing and non-nursing employees.

1. 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 representative that responded did not object to the undertaking.

1. The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

1. As the Agreement does not contain a flexibility term which meets the requirements of s.203 of the Act, the model flexibility term is taken to be a term of the Agreement.

1. The Australian Nursing and Midwifery Federation (ANMF) and the Australian Municipal, Administrative, Clerical and Services Union (ASU) 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 and 190 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 2024.

COMMISSIONER

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