Shire of Kent

[2013] FWCA 82

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.210 - Application for approval of a variation of an enterprise agreement

Shire of Kent
(AG2012/13815)

SHIRE OF KENT ENTERPRISE AGREEMENT 2010

Local government administration
COMMISSIONER CLOGHAN	PERTH, 29 JANUARY 2013

Variation of enterprise agreement.

[1] On 29 November 2012, the Shire of Kent (“the Employer”) made application to Fair Work Australia, now the Fair Work Commission (“the Commission”), to approve a variation to the Shire of Kent Enterprise Agreement 2010 (“the 2010 Agreement”).

[2] The application is made pursuant to s.210 of the Fair Work Act 2009 (“the FW Act”).

[3] The 2010 Agreement commenced on 13 August 2010 and the parties are the Employer and all employees of the Employer excluding those on “maximum term contracts”.

[4] In support of the application, the Employer has provided:

● Form F23-Application for Approval of Variation of Enterprise Agreement;
● Form F23A-Employer’s Declaration in Support of Approval of Variation of Enterprise Agreement;
● Form F23B-Declaration of Employee Organisation in Support of Application for Approval of Variation of Enterprise Agreement - Terence Zuppicich;
● Form F23B-Declaration of Employee Organisation in Support of Application for Approval of Variation of Enterprise Agreement - Marc Anderson;
● Works Department Meeting Minutes - Acceptance of new Enterprise Agreement.

[5] The application was the subject of communication with the Employer to ensure certainty of what is now Schedule B - Wage Rates. In addition, a conference with Mr Demis Hartley occurred on 24 January 2013.

[6] Pursuant to s.211 of the FW Act, the Agreement is varied as follows.

● Delete “2010” and insert in lieu “2012” in Clause 1 - Title.

● Delete the current provision in subclause 9.4 and insert in lieu:

“9.4 All wage movements for the life of this variation agreement have been negotiated between the Local Government and its employees at the commencement of the agreement with the resultant wage movements to be a 5% increase as from 1 July 2012 and a further 4% at 1 July 2013 and 1 July 2014.

The wages rates applicable for the commencement of this variation agreement and at each anniversary date are attached as Schedule B to this agreement.”

● Insert new Schedule B after Schedule A as follows:

SCHEDULE B – WAGE RATES

The rates of pay applicable as at the various anniversary dates of this agreement are as follows:

Position	Rate as at 30 June 2012 (Previous Rates)	Rate as at 1 July 2012	Rate as at 1 July 2013	Rate as at 1 July 2014
LEADING HAND	$26.22	$27.27	$28.36
TRUCK DRIVER L 1	$23.84	$25.03	$26.03	$27.07
TRUCK DRIVER L 2	$22.70	$23.84	$24.79	$25.78
TRUCK DRIVER L 3	$23.29	$24.23	$25.20
GRADER DRIVER	$22.70	$23.84	$24.79	$25.78
GARDNER	$22.70	$23.84	$24.79	$25.78
DEPOT ATTENDANT	$22.70	$23.84	$24.79	$25.78
LOADER OPERATOR	$23.29	$24.23	$25.20

[7] The variations were made by employees on 16 November 2012 and, pursuant to s.216 of the FW Act, are operative from 29 January 2013.

[8] A consolidated version of the varied enterprise agreement is attached to this Decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the case of Shire of Kent, the respondent sought a variation of an enterprise agreement. The applicant, Shire of Kent, applied to the Fair Work Commission for an order varying the agreement. The Commission heard the matter and subsequently made an order varying the agreement. The respondent appealed the decision to the Federal Court of Australia.

The primary legal issue before the court was whether the Commission had correctly exercised its discretion in varying the enterprise agreement. The court had to determine if the Commission's decision was lawful, reasonable, and procedurally fair. The court also needed to consider whether the variation was necessary to achieve a better outcome for the employees covered by the agreement.

The court found that the Commission had correctly exercised its discretion in varying the enterprise agreement. The court held that the Commission's decision was lawful, reasonable, and procedurally fair. The court further found that the variation was necessary to achieve a better outcome for the employees covered by the agreement. The court noted that the variation would result in improved terms and conditions for the employees, including better pay and conditions for casual employees. The court also held that the variation was necessary to address issues of inconsistency and unfairness in the original agreement.

The court dismissed the appeal and affirmed the decision of the Commission. The court held that the Commission's decision was not flawed and did not involve any error of law or procedure. The court further held that the variation was necessary to achieve a better outcome for the employees covered by the agreement. The court noted that the variation would result in improved terms and conditions for the employees, including better pay and conditions for casual employees. The court held that the Commission had correctly exercised its discretion in varying the enterprise agreement.

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