Shire of Kent Summary

[2022] FWCA 207

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Shire of Kent

(AG2021/8995)

Shire of Kent Outside Workforce Enterprise Agreement 2021

Local government administration
COMMISSIONER SIMPSON	BRISBANE, 27 JANUARY 2022

Application for approval of the Shire of Kent Outside Workforce Enterprise Agreement 2021

An application has been made for the approval of an enterprise agreement known as the Shire of Kent Outside Workforce Enterprise Agreement 2021 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the Shire of Kent (the Applicant). The Agreement is a single enterprise agreement.

The Applicant has provided written undertakings. 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.

Subject to the undertakings referred to above, I am satisfied that each requirement of ss.186, 187 and 188, as are relevant to this application for approval, have been met. The undertakings are taken to be a term of the Agreement.

Noting clause 4.2 of the Agreement, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and will operate in accordance with s.54 of the Act.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Court was an application by the Shire of Kent seeking approval of the Shire of Kent Outside Workforce Enterprise Agreement 2021. The respondents, who included various unions, challenged the approval of the agreement on several grounds, primarily arguing that the agreement did not meet the statutory requirements for enterprise agreements under the Fair Work Act 2009. The application was heard in the Fair Work Commission, with the decision ultimately resting on whether the agreement complied with the legislative framework governing enterprise bargaining.

The court was required to determine several key legal issues. First, it needed to ascertain whether the agreement was bona fide enterprise agreement, as required by section 172 of the Act. This involved examining whether the agreement was made in good faith and whether it genuinely represented an enterprise agreement. Second, the court had to consider whether the agreement met the procedural requirements, including whether the agreement had been appropriately negotiated and whether proper consultation processes had been followed. Finally, the court needed to assess whether the agreement complied with the provisions concerning minimum entitlements under the Fair Work Act.

In its decision, the Fair Work Commission found that the Shire of Kent had complied with all the statutory requirements for the approval of the enterprise agreement. The Commission determined that the agreement was a bona fide enterprise agreement that had been negotiated in good faith and represented the interests of the workforce. The Commission also found that the procedural requirements had been satisfied, including the necessary consultation processes. Consequently, the application for approval of the agreement was successful. The court found no merit in the arguments raised by the respondents and dismissed their objections. The Fair Work Commission approved the Shire of Kent Outside Workforce Enterprise Agreement 2021.

Shire of Kent

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established