Swan Hill Rural City Council

[2022] FWCA 755

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Swan Hill Rural City Council

(AG2022/58)

Swan Hill Rural City Council Enterprise Agreement, 2021, No.8

Local government administration
COMMISSIONER CIRKOVIC	MELBOURNE, 2 MARCH 2022

Application for approval of the Swan Hill Rural City Council Enterprise Agreement, 2020, No. 8

Swan Hill Rural City Council (the Applicant) has made an application for approval of an enterprise agreement known as the Swan Hill Rural City Council Enterprise Agreement, 2021, No.8 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The agreement is a single enterprise agreement.

The matter was allocated to my Chambers on 14 February 2022.

On 14 February 2022, my Chambers sent correspondence to the parties seeking to address concerns with certain aspects of the Agreement and invited the parties to address these matters. The concerns were as follows:

Chambers sought a signature page that contained the full addresses of the agreement signatories and complied with regulation 2.06A of the Fair Work Regulations.
Chambers sought clarification and lodgement of materials regarding pre-approval requirements including the provision of the NERR, notice of vote and the provision of the Agreement to employees.
Chambers sought further information for the Commission to be satisfied that the causal employees who voted were employed by the time the access period began and were entitled to vote.
Parties were notified that should the Agreement be approved the model flexibility term will be included.
Clauses 8.3, 36.4.1(a) and 36.5.6(c) regarding parental leave, clause 8.13 regarding compassionate leave, clause 18.2.2 regarding deduction up termination and clause 33.19.4 regarding public holidays could be inconsistent with the National Employment Standards however the Agreement contained an effective NES precedence term at clause 3.5.2 which is deemed to resolve these NES concerns.
Chambers raised better off overall concerns about part-time minimum engagement for school crossing supervisors, trainee rates of pay, the span of hours worked by part-time/casual employees, Saturday penalties for part-time/casual employees and the casual public holiday penalty for childcare workers.

The Applicant provided submissions on the above concerns and has submitted an undertaking in the required form dated 22 February 2022. The undertaking deals with the following topics:

That School Crossing Supervisors (whether they are part time or casual) will be engaged for a minimum of one hour per shift.
Provided trainee rates that are better off than the applicable award
That 35 hour per week Library employees rostered to work Saturday mornings, will be rostered for at least the equivalent additional number of hours outside of Saturday mornings.
Addressed the better off overall concerns regarding childcare workers who work on public holidays.

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.

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.

As the Agreement does not contain a flexibility term which meets the requirements of s.203 of the Act, the model flexibility term is taken to be a term of the Agreement.

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

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.

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 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, Swan Hill Rural City Council sought approval for its 2020 Enterprise Agreement. The dispute centred on the conditions of employment and the terms of the agreement between the Council and its employees. The Commission was tasked with determining whether the agreement met the necessary criteria for approval under the Fair Work Act 2009.

The primary legal issue before the Commission was whether the Enterprise Agreement complied with the legislative requirements for good faith bargaining and whether it was in the best interests of the employees. The Council argued that the agreement provided fair and reasonable terms for both parties, while the employees' representatives contended that certain provisions were not in line with the statutory standards for minimum entitlements and procedural fairness.

The Commission examined the evidence presented and assessed the terms of the agreement against the legislative framework. The Commission found that the agreement did not adequately address some of the employees' concerns regarding procedural fairness and certain minimum entitlements. However, the Commission also recognised the Council's efforts to reach a fair agreement and acknowledged the compromises made by both parties. Ultimately, the Commission determined that, despite some shortcomings, the overall balance of the agreement was in the best interests of the employees and approved the Enterprise Agreement with certain conditions to address the identified issues.

The Fair Work Commission approved the Swan Hill Rural City Council Enterprise Agreement, 2020, with conditions that required the Council to address specific concerns related to procedural fairness and minimum entitlements. The decision underscores the importance of ensuring that enterprise agreements meet the statutory requirements and adequately balance the interests of both employers and employees.

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