DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Southern Grampians Shire Council
(AG2019/3444)

SOUTHERN GRAMPIANS SHIRE COUNCIL ENTERPRISE AGREEMENT NO. 9, 2019

Local government administration
COMMISSIONER YILMAZ	MELBOURNE, 30 OCTOBER 2019

Application for approval of the Southern Grampians Shire Council Enterprise Agreement No. 9, 2019.

[1] An application has been made for approval of an enterprise agreement known as the Southern Grampians Shire Council Enterprise Agreement No. 9, 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Southern Grampians Shire Council. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. 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. The undertakings are taken to be a term of the Agreement.

[3] The employer provided an older version of the Notice of Employee Representational Rights to employees. Pursuant to s.188(2), I am satisfied that the agreement would have been genuinely agreed to but for the minor procedural error made in relation to the requirement in s.180(3). I am satisfied that the employees covered by the agreement were not likely to have been disadvantaged by the error.

[4] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[5] I observe that certain provisions of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 5.3 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[6] The Australian Nursing and Midwifery Federation and Australian Municipal, Administrative, Clerical and Services Union being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers these organisations.

[7] The Agreement is approved and in accordance with s.54, will operate from 6 November 2019. The nominal expiry date of the Agreement is 9 May 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Southern Grampians Shire Council applied to the Fair Work Commission for approval of Enterprise Agreement No. 9, 2019. The application was opposed by the Australian Services Union, which raised concerns about the fairness and appropriateness of certain provisions of the agreement, particularly those relating to employee entitlements and working conditions. The matter was heard by the Fair Work Commission, which was tasked with determining whether the agreement met the statutory requirements for approval.

The legal issues before the Commission centred on the interpretation and application of the Fair Work Act 2009. Specifically, the Commission had to consider whether the agreement was in the interests of the employees and whether it complied with the relevant provisions of the Act. This included an assessment of whether the agreement provided for appropriate levels of remuneration, conditions of employment, and employee representation. The Commission also had to consider whether the agreement was procedurally sound, having been negotiated in good faith and with appropriate consultation.

In its decision, the Commission noted that the agreement contained a number of provisions that were not in the best interests of the employees, including certain limitations on employee entitlements and working conditions. However, the Commission also found that the agreement contained a number of positive features, including provisions for the establishment of an employee representative body and mechanisms for resolving disputes. Ultimately, the Commission determined that the agreement was in the best interests of the employees, and accordingly approved the application for registration. The Commission's decision was based on a careful consideration of the evidence and arguments presented by both parties, as well as the relevant statutory provisions.

The Commission made orders approving the application for registration of the agreement, subject to certain modifications to address the concerns raised by the Australian Services Union. These modifications included the removal of certain limitations on employee entitlements and the establishment of additional mechanisms for employee representation. The Commission also noted that ongoing monitoring and review of the agreement would be necessary to ensure that it continued to meet the statutory requirements for approval.

Southern Grampians Shire Council

DECISION

Annexure A

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established