Northern Midlands Council T/A Northern Midlands Council

[2022] FWCA 3058

[2022] FWCA 3058

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Northern Midlands Council T/A Northern Midlands Council

(AG2022/3312)

Northern Midlands Council Enterprise Agreement 2022-2025

Local government administration
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 2 SEPTEMBER 2022

Application for approval of the Northern Midlands Council Enterprise Agreement 2022-2025

1. An application has been made for approval of an enterprise agreement known as the Northern Midlands Council Enterprise Agreement 2022-2025 (Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (Act). It has been made by Northern Midlands Council T/A Northern Midlands Council (Employer). The Agreement is a single enterprise agreement.

1. Item 7 of the Agreement defines the term “Award” as any applicable award, modern award, federal award, transitional federal award, pre-reform federal award and a national [sic] agreement preserving state award. This is expressly said to include the Municipal Employees (Country Councils – Tasmania) Award, Municipal Officers (Tasmania) Award and the Local Government (Community Services) Tasmania Award. The Employer did not provide a copy of these industrial instruments to the relevant employees during the access period for the Agreement as required by s 180(2) of the Act. The Employer submits that the reference to these industrial instruments in the Agreement is an administrative error. It says the industrial instruments have been replaced by the Local Government Industry Award 2020, which was provided to relevant employees during the access period.[1] Having regard to the material before the Commission I am satisfied that:

(a)   the error identified at [2] constitutes a minor procedural or technical error for the purposes of s 188(2)(a); and

(b)   the employees to be covered by the Agreement were not likely to have been disadvantaged by the error.[2]

1. 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.

1. Subject to the undertakings, 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. Item 27 of the Agreement states that employees engaged as shift workers will accrue an additional half a day for each month the employee is continuously engaged as a shift worker. Further, where an employee with 12 months’ continuous service is engaged for part of the 12-monthly period as a shift worker, that employee will have their annual leave increased by half a day for each month the employee is continuously engaged as a shift worker. It appears that the requirement for continuous engagement is more stringent that the definition of shiftworker in s 87(3) of the Act. It follows that Item 27 is likely to be inconsistent with the National Employment Standards (NES). However, noting Item 4 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 Australian Municipal, Administrative, Clerical and Services Union, being a bargaining representative for the Agreement, has 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 organisation.

1. The Agreement is approved and, in accordance with s 54 of the Act, will operate from 9 September 2022. The nominal expiry date of the Agreement is 30 June 2025.

DEPUTY PRESIDENT

Annexure A

[1] Form F17, Q21

[2] Huntsman Chemical Company Australia Pty Limited t/a RMAX Rigid Cellular Plastics and Others [2019] FWCFB 318

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