Shire of Manjimup

[2010] FWA 3479

[2010] FWA 3479

FAIR WORK AUSTRALIA

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 10 – Application to vary transitional instrument to remove ambiguity

Shire of Manjimup
(AG2010/874)

SHIRE OF MANJIMUP ENTERPRISE AGREEMENT 2008-2011
[AC321511]

Local government administration

COMMISSIONER ROE MELBOURNE, 30 APRIL 2010

Variation of transitional instrument to remove ambiguity.

[1] On 14 April 2010 the Shire of Manjimup supported by the relevant unions, the Australian Municipal, Administrative, Clerical and Services Union (ASU) and the Western Australian Shire Councils, Municipal Road Boards, Health Boards, Parks, Cemeteries and Racecourse, Public Authorities and Water Boards Union, lodged the necessary paper work for a variation to the Shire of Manjimup Enterprise Agreement 2008-2011 under Section 210 of the Fair Work Act 2009.

[2] On 19 April 2010 my associate wrote to the Shire of Manjimup. The relevant parts of that correspondence are as follows:

“The Commissioner has made an initial assessment of the proposed variation to the Shire of Manjimup Enterprise Agreement 2008-2011.

The Commissioner is of the understanding that the Agreement was originally approved by the Workplace Authority to operation from 24 March 2009. The decision of the Workplace Authority was prior to 1 July 2009 and was therefore not under the Fair Work Act. If you believe that the Commissioner is wrong about this then please let us know as soon as possible.

Schedule 3 Item 9 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 provides that a transitional instrument cannot be varied except as set out in that section. If the Agreement was approved by the Workplace Authority prior to 1 July 2009 then it is a transitional instrument.

The Commissioner is of the view that the variation cannot only be approved if it is to remove ambiguity or uncertainty as provided for in Schedule 3 Item 10 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 and or Item 26 of the same Act to clarify the interaction between the National Employment Standards and the Agreement. “

[3] After further exchange of correspondence I subsequently received confirmation from the Shire of Manjimup on 27 April 2010 and also from the relevant unions that they wished to apply for the variations to be made to remove ambiguity or uncertainty as provided for in Schedule 3 Item 10 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.

[4] I have examined the material provided by the Shire of Manjimup in support of its original application together with the material provided by the relevant unions and I am satisfied that it includes all the relevant information which would be necessary to support the revised application.

[5] The original declaration in Form 23 signed by the Chief Executive Officer of the Shire and supported by statutory declaration from the Federal Secretary of the Western Australian Shire Councils, Municipal Road Boards, Health Boards, Parks, Cemeteries and Racecourse, Public Authorities and Water Boards Union and Pat Byrne Industrial Services Coordinator of the ASU confirms that the proposed variations were the subject of proper consultation and were then endorsed by a ballot of the affected employees.

[6] Under Section 599 of the Fair Work Act I have the power to make a decision in terms different from those originally applied for and under Section 586 documents or applications may be corrected or amended, and under the Interim Fair Work Australia Rules 2009 clause 4 I may dispense with compliance with any of the requirements of the Rules of which the Forms are a part. Fair Work Australia should act without unnecessary formality to assist the parties to agreements. I am therefore prepared to deal with the amended application based upon the original forms and subsequent correspondence.

[7] On 19 April 2010 my associate advised the Shire of Manjimup as to my views in respect to the proposed variations as follows:

“The Commissioner is satisfied, subject to any submissions he might receive, that the following variations can properly be regarded as removing ambiguity or uncertainty. None of these changes actually alter the entitlements under the agreement but rather remove ambiguity or uncertainty about their application or interpretation.

Variations to:

• Clause 1.2 which corrects the proper name of the union covered by the Agreement



• Clause 1.3 which corrects the proper name of the union covered by the Agreement and of the industrial tribunal. This variation also applies to the name of the union in the signatories to the agreement page.



• Clause 4.5 which removes ambiguity and uncertainty about wage rates applying to annual leave when an employee is undertaking higher duties



• Clause 6.1 which removes ambiguity and uncertainty by making it clear that accumulated hours are to be utilised to provide for the rostered day off each fortnight



• Clause 7.2 and 7.4 which removes ambiguity and uncertainty about when and how accumulated hours can be accessed or paid by ensuring that the language in clauses 7.2 and 7.4 is consistent.



• Clause 8.2 which removes ambiguity and uncertainty that bereavement leave is paid in circumstances when an employee was intended to use accumulated hours but is instead faced with a bereavement.



• Clause 8.9 which removes ambiguity and uncertainty about the anniversary dates when each level of entitlement to personal and carers leave applies



• Clause 8.13 which removes ambiguity about the application of study leave by replacing the words “attending a course of study” with the words “undertaking a course of study” which clarifies the situation when study is done by electronic or other means.



• Clause 10.1 which removes uncertainty about payment of overtime to casuals by clarifying that they receive payment at the appropriate penalty rates rather than hour credited at the appropriate penalty rate which applies to other employees.



• Clause 21.1 and 21.4 which removes uncertainty that provision of protective equipment includes prescription safety glasses but excludes the provision of replacement tinting or anti-glare treatment and corrects the spelling of the word “loses”

The Commissioner is uncertain about whether the remaining three variations can properly be regarded as removing ambiguity and uncertainty in that it appears to the Commissioner that these variations do change the entitlements under the agreement even if it is in a relatively minor way. These three provisions are:

• Clause 10.3 which provides for payment for emergency call outs to be made either as cash or as banked hours at the discretion of the employee rather than the current provision which provides that the payment must be by cash.



• Clause 14.6 grave digging allowance: which alters the allowance from $20 each time that they are required to dig a grave (i.e. not filling) to an allowance of $10 for each digging and $10 for each filling.



• Clause 22.1 which removes the right of a trade union representative under the agreement to provide relevant union forms to employees.”

[8] The Shire of Manjimup in letters of 22 April and 27 April agreed with my assessment. The Shire requested clarification in respect to Clause 22.1 given that the Workplace Authority had advised that it was prohibited content. I advised the Shire as follows:

“You properly queried the apparent inconsistency in the treatment of clause 22.1 in respect to trade union representation. The advice you received when you lodged the original agreement related to the legislation at that time. Under the Work Choices legislation it is certainly arguable that clause 22.1 was prohibited content. However, under the new legislation which came into effect on 1 July 2009 the concept of prohibited content has been abolished. There are still some matters which cannot be in Agreements (for example discriminatory matters) but the content of clause 22.1 does not offend those provisions. “

[9] The Shire accepted my explanation.

[10] For the reasons set out above I am satisfied that the agreement is ambiguous and uncertain and that the employer covered by the Agreement which is a transitional instrument has applied for the Agreement to be varied to remove that ambiguity and uncertainty. I determine to approve the variations consistent with Schedule 3 Item 10 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 as listed above as they can properly be regarded as removing ambiguity or uncertainty. None of these changes actually alter the entitlements under the agreement but rather remove ambiguity or uncertainty about their application or interpretation. I do not approve the three variations listed in respect to the method of payment for emergency call outs, changes to the grave digging allowance, and the provision of union forms to new employees for the reasons listed above.

[11] An order to this effect will be issued operative from 1 April 2010 which is the day after the employees voted to support the variations.

COMMISSIONER

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