Shire Of Broome

[2021] FWCA 6654

[2021] FWCA 6654

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Shire Of Broome
(AG2021/7455)

SHIRE OF BROOME INSIDE WORKFORCE ENTERPRISE AGREEMENT 2021

Local government administration
DEPUTY PRESIDENT MANSINI	MELBOURNE, 12 NOVEMBER 2021

Application for approval of the Shire of Broome Inside Workforce Enterprise Agreement 2021.

[1] Shire of Broome has applied for approval of a single enterprise agreement known as the Shire of Broome Inside Workforce Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] Since the application was made, the Commission raised concerns about whether the pre-approval requirements were met and whether the Agreement passes the “better off overall” test. Further evidence and information was provided in relation to these concerns.

[3] The Shire of Broome sought to correct a typographical error in the statutory declaration that accompanied the application which was not opposed. In the circumstances, I am satisfied that this amendment should be allowed and that it is appropriate to do so pursuant to s.586 of the Act.

[4] The cohort of employees identified on the Applicant’s statutory declaration as covered by the Agreement at the time of the vote included a number of casual employees. The Applicant provided further evidence to satisfy the Commission that:

a) all employees, who were employed at the relevant time(s) 1 and covered by the Agreement, were requested to vote; and
b) of the employees who were requested to vote, a proportion of casual employees did not work a shift in the relevant period, however even if those employees had cast a vote it would have been immaterial to the outcome.

[5] I am satisfied, on the evidence before the Commission, that the impact of the Applicant requesting a broader than strictly eligible cohort of employees to vote was immaterial and does not prevent approval by the Commission. 2

[6] A written undertaking was given in accordance with s.190 of the Act and is attached at Annexure A (Undertaking). The bargaining representatives did not oppose the Undertaking. I am satisfied that the Undertaking will not cause financial detriment to any employee covered by the Agreement and that the Undertaking will not result in substantial changes to the Agreement. Pursuant to s.201(3) of the Act, the Undertaking is taken to be a term of the Agreement.

[7] I am satisfied that the NES is incorporated in the Agreement and when the NES provides a great benefit, it will apply to the extent of the inconsistency.

[8] On the basis of the material contained in the amended application, further evidence and information provided on request of the Commission and the Undertaking, 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.

[9] The Australian Municipal, Administrative, Clerical and Services Union, being a bargaining representative for the Agreement, has given notice under s.183 of the Act. In accordance with s.201(2), I note that the Agreement covers this organisation.

[10] The Agreement was approved on 12 November 2021 and, in accordance with s.54, will operate from 19 November 2021. The nominal expiry date of the Agreement is 30 June 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE513847  PR735717>

1   Appeal by SDA and others [2019] FWCFB 7891.

 2   National Tertiary Education Industry Union v Swinburne University of Technology [2015] FCAFC 98.

Annexure A