Northern Grampians Shire Council T/A Northern Grampians Shire Council

[2025] FWCA 1

[2025] FWCA 1

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Northern Grampians Shire Council T/A Northern Grampians Shire Council

(AG2024/4949)

NORTHERN GRAMPIANS SHIRE COUNCIL ENTERPRISE AGREEMENT (10) 2024

Local government administration
COMMISSIONER REDFORD	MELBOURNE, 13 JANUARY 2025

Application for approval of the Northern Grampians Shire Council Enterprise Agreement (10) 2024

1. An application has been made for approval of an enterprise agreement known as Northern Grampians Shire Council Enterprise Agreement (10) 2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Northern Grampians Shire Council (NGSC). The Agreement is a single enterprise agreement. 

Undertakings

1. NGSC provided written undertakings in relation to matters raised by the Commission in relation to the application. A copy of the undertakings are 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. The undertakings relate to:   

1. Annualised salary.

Interaction with the National Employment Standards 

1. Page 9 of the agreement contains a term which provides that if a term of the agreement is detrimental to an employee when compared with the National Employment Standards (NES) the NES will prevail.  (NES precedence clause). On this basis, I am satisfied that the apparent inconsistencies with the NES outlined below do not prevent the approval of this agreement:    

• Annual leave – Shiftworker: Clause 7.1.1 of the agreement states that all employees receive 4 weeks of annual leave and does not explicitly state that shiftworkers receive an extra week as required under s.87(1)(b) of the Act. However, to the extent that a shiftworker is not entitled to additional leave by the terms of the agreement, the NES precedence clause will prevail.

• Compassionate leave – stillbirth consideration: The entitlement to compassionate leave provided for on page 48 of the agreement does not appear to be triggered after the stillbirth of a child of the employee or a member of the employee’s immediate family or household as per s.105(1)(b) of the Act or after the employee or the employee’s spouse or de facto partner has a miscarriage as per s.105(1)(c) of the Act. However, to the extent that this entitlement does not arise by the terms of the agreement, the NES precedence clause will prevail.

• Withholding of NES entitlements: Clause 11.1.4 of the agreement provides that if an employee fails to give the required notice of termination, the employer may withhold from any monies due to the employee on termination under NES. This may restrict an employee’s entitlement to payment of NES entitlements upon termination of employment. However, to the extent of any such restriction arising by the terms of the agreement, the NES precedence clause will prevail. 

• Redundancy: Clause 12.2.4 of the agreement states that severance pay is calculated at 2 weeks’ pay for each completed year of service. This may in some circumstances give rise to an inconsistency with s.119(2) of the Act.  However, is any employee’s entitlement arising in the case of redundancy is inferior to that prescribed by the Act, the NES precedence clause will prevail.

Consideration 

1. In response to several issues raised by the Commission, NGSC made supplementary submissions about the steps it took leading up to asking employees to vote on the agreement. On the basis of those submissions and 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 Australian Municipal, Administrative, Clerical & Services Union Vic/Tas Authorities & Services Branch Union (ASU), and the Australian Nursing and Midwifery Federation (Vic Branch) (ANMF), both being bargaining representatives for the Agreement, have given notice under s.183 of the Act that it wants the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the ASU and the ANMF.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate 7 days after approval.

COMMISSIONER

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ANNEXURE A