Stonnington City Council

[2025] FWCA 1101

[2025] FWCA 1101

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Stonnington City Council

(AG2025/570)

STONNINGTON CITY COUNCIL ENTERPRISE AGREEMENT NO. 12/2024

Local government administration
COMMISSIONER CONNOLLY	MELBOURNE, 2 APRIL 2025

Application for approval of the Stonnington City Council Enterprise Agreement No. 12/2024.

Approval

1. An application has been made for approval of an enterprise agreement known as the Stonnington City Council Enterprise Agreement No. 12/2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Stonnington City Council (the Applicant). The Agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 12 March 2025.

1. The notification time for the Agreement under s.173(2) was 23 May 2024 and the Agreement was made on 24 February 2025.  Accordingly, the genuine agreement requirements the Agreement is to be assessed under are those applying after 6 June 2023 and the better off overall test (BOOT) is that applying on and from 6 June 2023. [1] 

1. On 20 March 2025, the Employer was invited to address aspects of the Agreement including through the provision of an undertaking.

1. In respect of the alleged Notice of Employee Representational Rights (NERR) deficiency I do not believe that the agreement title inconsistency had the effect of disenfranchising any employee who is covered by the proposed Agreement from participation in the bargaining process. I am satisfied (taking into consideration s.188(5) of the Act and the decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others) that the procedural or technical error is minor and that the employees were not likely to have been disadvantaged, and accordingly, that there has been a genuine agreement.

1. There are three National Employment Standards (NES) issues that require comment:

·  Annual leave in hours not weeks:  Clause 20.1.2 expresses the entitlement to annual leave in hours rather than weeks as per s87 of the Act.

·  Personal leave in hours not weeks:  Clause 23.2 expresses the entitlement to personal leave in hours rather than weeks as per s96 of the Act.

·  Withholding monies at termination:  Clause 7.2.1(d) appears to provide that in the case of termination, if employees do not give notice, the Employer may withhold from any monies due, an amount not exceeding the amount the employee would have been paid under this Agreement in respect of the period of notice. It is noted that this clause does not appear to limit the source of monies which may be deducted. The effect of this is that this clause appears to permit the employer to withhold monies owing to the employee under the NES. This raises the issue that this clause may be inconsistent with Chapter 2 Part 2.2 Division 2 of the Act.

1. Clause 3.4.3 of the Agreement acts as an effective NES precedence clause, in that it states that “The National Employment Standards (NES) applies to all Employees. Where the NES provides a condition or entitlement more favourable to the Employee in a particular respect than that set out in this Agreement, the condition or entitlement set out in the NES prevails.”. As a result of the NES precedence clause, the above clause(s) will not apply to the extent that they are inconsistent with the NES.

1. The Australian Services Union and the Australian Nursing and Midwifery Federation, 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) of the Act I note that the Agreement covers these organisations.

1. I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A 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 2027.

Variation

1. An additional application has also been made under s.218A of the Act to vary the Agreement in order to correct a number of obvious errors.

1. The Applicant has written to Chambers and advised that the Agreement distributed to staff during the access period contained errors. The Applicant seeks the Commission’s approval to rectify these errors to ensure that the Enterprise Agreement accurately reflects:

·  Correct salary figures for Library Information Services employees,

·  A clear nominal expiry date, and

·  The correct allowance for Centre Chefs.

1. The Applicant has provided a revised Agreement which consolidates the variations. A copy of these changes has been provided to the bargaining representatives and there have been no objections received.

1. Having reviewed the list of errors, it is apparent in my view that such errors would fall within the scope of s. 218A(1). Accordingly, the revised Agreement is attached to this decision.

1. The variations will operate from the date on which the Agreement commences operation.

COMMISSIONER

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.

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