Shire of Toodyay

[2022] FWCA 4175

[2022] FWCA 4175

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Shire of Toodyay

(AG2022/4784)

Shire of Toodyay Operations Staff Agreement 2022

Local government administration
COMMISSIONER PLATT	ADELAIDE, 29 NOVEMBER 2022

Application for approval of the Shire of Toodyay Operations Staff Agreement 2022

1. An application has been made for approval of an enterprise agreement known as the Shire of Toodyay Operations Staff Agreement 2022 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Shire of Toodyay (the Applicant). The agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 22 November 2022 and was determined on the papers.

1. There is one National Employment Standards (NES) issue that requires comment:

·   Clause 48.3 of the Agreement states that if an employee who is at least 18 years old fails to give the notice required, the employer may withhold any monies due to the employee on termination, either under the Agreement or under the NES. This clause appears to be inconsistent with the NES to the extent that it allows the employer to withhold NES entitlements (e.g. accrued annual leave).

1. Clause 5.2 of the Agreement acts as an effective NES precedence clause, in that it states that in the event of an inconsistency between the Agreement and the NES, and the NES provides a greater benefit, the NES will apply to the extent of the inconsistency. As a result of the NES precedence clause, clause 48.3 of the Agreement will not apply to the extent that it is inconsistent with the NES.

1. The Applicant has submitted an undertaking in the required form dated 29 November 2022. The undertaking deals with the following topics:

·   Clause 38.5(b) of the Agreement will operate such that deductions may only be made subject to an agreement in writing between the employee and the employer.

·   The employer will pay trainees rates of pay as per Schedule E of the Miscellaneous Award 2020 plus an additional 15% as a minimum payment.

·   If a part-time employee is directed to work more than the hours agreed in writing, as required by clause 18.2(d) of the Agreement, they will be paid overtime.

1. A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives did not express any view on the undertaking.

1. The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

1. I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 30 June 2025.

COMMISSIONER

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