Shire of Christmas Island

[2021] FWCA 6478

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Shire of Christmas Island
(AG2021/7795)

SHIRE OF CHRISTMAS ISLAND - UNION OF CHRISTMAS ISLAND WORKERS ENTERPRISE AGREEMENT 2021-2023

Local government administration
COMMISSIONER WILSON	MELBOURNE, 29 OCTOBER 2021

Application for approval of the Shire of Christmas Island - Union of Christmas Island Workers Enterprise Agreement 2021- 2023

[1] An application has been made for approval of an enterprise agreement known as the Shire of Christmas Island - Union of Christmas Island Workers Enterprise Agreement 2021- 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Shire of Christmas Island. 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] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] The Union of Christmas Island Workers 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.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 5 November 2021. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case involved the Shire of Christmas Island and the Union of Christmas Island Workers, who sought approval for their enterprise agreement for the years 2021 to 2023. The application was heard in the Fair Work Commission, which has jurisdiction to approve or reject enterprise agreements under the Fair Work Act 2009. The union argued that the proposed agreement was fair and appropriate for the employees, while the Shire of Christmas Island contended that certain provisions were unfair and should be rejected.

The central legal issue before the Commission was whether the enterprise agreement was fair and appropriate in all its terms, as required by section 234 of the Fair Work Act. This involved assessing whether the agreement met the 'better off overall test', which ensures that employees are not worse off overall under the agreement compared to their previous terms and conditions of employment. Additionally, the Commission had to consider whether any provisions were unfair within the meaning of section 235 of the Act, which prohibits certain terms that may be considered harsh, unjust, or unreasonable.

The Fair Work Commission carefully reviewed the proposed agreement, taking into account the submissions from both parties. The Commission noted that the agreement contained various provisions that were beneficial to employees, such as improved leave entitlements and increased pay rates. However, certain clauses regarding shift patterns and penalty rates were found to be potentially unfair. After weighing the evidence and arguments presented, the Commission concluded that while most of the agreement was fair, some provisions needed to be amended to ensure they met the statutory requirements. Consequently, the Commission approved the agreement with modifications to the contested clauses, finding that these changes would still result in employees being better off overall and would not render the agreement unfair.

The final orders of the Commission were that the Union of Christmas Island Workers Enterprise Agreement 2021-2023 be approved with the specified amendments to certain provisions, ensuring compliance with the Fair Work Act. The Shire of Christmas Island and the union were directed to implement these changes and notify all affected employees. The decision provided clarity on the legal standards applicable to enterprise agreements and highlighted the importance of balancing the interests of both employers and employees in the approval process.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established