Shire of York

[2019] FWCA 2281

[2019] FWCA 2281

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Shire of York
(AG2018/6178)

SHIRE OF YORK OUTSIDE STAFF COLLECTIVE ENTERPRISE AGREEMENT 2018

Local government administration
DEPUTY PRESIDENT BEAUMONT	PERTH, 5 APRIL 2019

Application for approval of the Shire of York Outside Staff Collective Enterprise Agreement 2018.

[1] The Shire of York has made an application for the approval of an enterprise agreement known as the Shire of York Outside Staff Collective Enterprise Agreement 2018 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act), and the Agreement is a single enterprise agreement.

[2] An issue arose concerning the application because it appeared that the Shire had not complied with its obligation to provide a Notice of Employee Representation Rights (Notice) within the appropriate time frame in accordance with s 173(3) of the Act.

[3] The Shire issued the Notice on 5 October 2017, some 5 months before the notification time on 13 March 2018. In or around October 2017, the Shire was to propose a start to negotiations with its employees. However, at the time the bargaining was to commence, the lead negotiator for the Shire was said to have been implicated in a workplace investigation. That investigation culminated in the departure of the lead negotiator in or around February 2018. According to the evidence of the Chief Executive Officer of the Shire, his focus turned to supporting employees affected by the workplace investigation, and recruiting a replacement for the lead negotiator for the bargaining process, in addition the position that former employee held.

[4] With the appointment of an interim replacement for the former employee, the priority became ensuring that the Shire’s capital works program could commence, and reassessing the structure of the Infrastructure and Development Services department in consultation with employees. The evidence of the CEO was that during the intervening period leading up to the start of the negotiations in March 2018, the Executive Managers in the Shire kept depot staff informed about the delay in the bargaining process through frequent communications at tool box meetings. 1 The CEO noted that during the period of October 2017 until the notification time, other Executive Managers within the business had declined to take on the role of lead negotiator.2

[5] The CEO gave evidence that the bargaining representatives originally nominated were the same representatives leading up to and during the negotiations. 3 The depot team was said to be small and there was very little turnover in the period.4

[6] The Shire submitted that the circumstances during the relevant period were difficult and required a delay to the commencement of bargaining. However, the Commission could be satisfied that there were legitimate reasons for the delay. I was.

[7] In the decision of Wangaratta Rural City Council it was said that whether a period of time is reasonable or not depends on the particular circumstances in existence. 5 A reasonable period of time is not a fixed amount irrespective of circumstances.6 What is a reasonable period in one matter may not be reasonable in another.7

[8] Considering the context of the negotiations, the level of communication, involvement of bargaining representatives, and the low level of employee turnover, I am satisfied that the employer had already given employees a NERR within a reasonable period before the notification time in accordance with s 173(4).

[9] In addition to the above issue, the Shire made an application under s 586 to amend the Form 17 submitted in support of the application. There were, according to the Shire, errors made with Part 3, section 3.4, which required amendment. On 22 March 2019, the Shire filed an amended version of the Form 17. I am satisfied that the corrections should be made and that it is appropriate to do so under s 586.

[10] The Employer has provided written undertakings. A copy of these undertakings is attached in Annexure A. In compliance with s 190(4), the bargaining representative’s views regarding the undertakings proffered were sought. No objection was raised.

[11] 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.

[12] Therefore, subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, 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.

[13] The Australian Municipal, Administrative, Clerical and Services Union (Western Australian Branch) (the organisation),being a bargaining representative for the Agreement, has given notice under s 183 of the Act that it wants want the Agreement to cover it. In accordance with s 201(2), and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

[14] The Agreement was approved on 5 April 2019 and, in accordance with s 54, will operate from 12 April 2019. The nominal expiry date of the Agreement is 4 April 2022.

DEPUTY PRESIDENT

Annexure A

 1   Witness Statement of Paul Martin dated 21 March 2019 (Martin Statement).

 2   Martin Statement.

 3   Martin Statement.

 4   Martin Statement.

 5   [2018] FWCA 4087 [14].

 6   Ibid.

 7   Ibid.

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