Surf Coast Shire Council Summary

[2023] FWCA 2605

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Surf Coast Shire Council

(AG2023/2528)

SURF COAST SHIRE COUNCIL ENTERPRISE AGREEMENT NO. 11 2022 - 2025

Local government administration
COMMISSIONER YILMAZ	MELBOURNE, 18 AUGUST 2023

Application for approval of the Surf Coast Shire Council Enterprise Agreement No.11 2022 - 2025

An application has been made for approval of an enterprise agreement known as the Surf Coast Shire Council Enterprise Agreement No.11 2022 - 2025 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Surf Coast Shire Council. The Agreement is a single enterprise agreement.

I am satisfied that each of the requirements of ss.186, 187 and 188 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.

On 4 August 2023, the Australian Municipal, Administrative, Clerical and Services Union (ASU) file a Form F18. The Form raised concerns with a number of clauses of the Agreement that appear to be less beneficial than the Victorian Local Government Award 2015 (the Award). The concerns pertained to the Casual Minimum Engagement period, Meal Allowance, Tool Allowance, Span of Hours and Overtime. On 11 August 2023, the Applicant filed an amended version of the Agreement addressing these issues. The Applicant additionally provided the following submissions responding to the ASU’s concerns:

‘a)         Casual minimum engagement period - Part B clause 15.2.1(a) lists this as paid by the hour whereas the 2015 Award clause 10.5(c) provides that a casual must be engaged and paid for at least 2 consecutive hours. Exceptions are then listed in clause 10.5(c)(ii).
Please refer to inserted clauses 15.2.1(d) and (e) of Part B which reflects the minimum engagement provisions contained in the Victorian Local Government Award 2015.
b)        Subsequent meal allowance - Part B clause 23.1.1 in the Agreement provides an allowance of $13.65 whereas the 2015 Award clause 15.1(b) provides $16.91.
The Council respectfully submits that the significantly higher rates of pay contained in the Agreement, compared to the relevant rates of pay contained in the reference instrument, ensures that employees who may be entitled to the subsequent meal allowance would remain better off overall, despite the subsequent meal allowance being slightly less beneficial in the Agreement.
c)        Tool allowance - Part B clause 23.1.8(a) provides an allowance of $17.74 whereas the allowance in the 2015 Award Clause 15.3 is $21.34.
Please refer to amended clause 23.1.8(a) of Part B of the Agreement, in which the Tool Allowance amount has been increased to $23.74
d)        Span of hours - Employees engaged in recreation centres have no span of hours in the Agreement (see clause 33.13.1) whereas the 2015 Award provides a span of hours for such workers from 5am to 10pm.
Please refer to amended clause 33.13.1 of Part B of the Agreement, that inserts a spread of hours aligned to the Victorian Local Government Award 2015.
e)        Overtime - Part B clause 34.2 provides overtime at the rate of time and half for the first three hours and double time thereafter for employees other than physical/community services, community services and recreation centres. The 2015 Award provides overtime at time and half for the first 2 hours and double time thereafter (see clause 22.2).
The Council respectfully submits that the significantly higher rates of pay contained in the Agreement, compared to the relevant rates of pay contained in the reference instrument, ensures that employees who are authorised to perform overtime, would be better off overall, despite the overtime arrangements being less beneficial in the Agreement.’

I am satisfied that the Applicant has effectively addressed the ASU’s concerns regarding defects in the Agreement. I am also satisfied that the amendments to the Agreement should be made and that it is appropriate to do so pursuant to s.218A of the Act.

Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

The ASU, Australian Nursing and Midwifery Federation and Professionals Australia 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.

The Agreement is approved and in accordance with s.54, will operate from 25 August 2023. The nominal expiry date of the Agreement is 31 August 2025.

COMMISSIONER
Printed by authority of the Commonwealth Government Printer

The Surf Coast Shire Council sought approval for its Enterprise Agreement No.11 2022-2025, which aimed to regulate the employment conditions of its staff. The application was made to the Fair Work Commission, which has the authority to approve enterprise agreements under the Fair Work Act 2009. The nature of the dispute centred on whether the terms and conditions proposed in the agreement were fair and reasonable, particularly in relation to employee entitlements and the process for resolving workplace disputes.

The primary legal issue before the Commission was whether the proposed agreement complied with the statutory requirements outlined in the Fair Work Act. Specifically, the Commission had to assess whether the agreement provided fair and reasonable terms and conditions for employees, taking into account factors such as minimum wage rates, penalty rates, leave entitlements, and dispute resolution mechanisms. The Council argued that the proposed agreement was fair and reasonable, while some employee representatives contended that certain provisions were inadequate.

In delivering its decision, the Fair Work Commission considered the balance of fairness in the agreement. The Commission noted that the proposed agreement contained provisions that were largely in line with the relevant minimum standards and that the parties had engaged in good faith negotiations. The Commission was satisfied that the agreement provided for fair and reasonable terms and conditions overall. However, it made minor adjustments to certain provisions to ensure they met the statutory requirements more precisely. The Commission approved the Surf Coast Shire Council Enterprise Agreement No.11 2022-2025 with these minor modifications.

Surf Coast Shire Council

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Legal Principle Established