Tasman Council Summary

[2022] FWCA 1992

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Tasman Council

(AG2022/1657)

AG2022/1657 - Tasman Council Enterprise Agreement 2021

Local government administration
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 17 JUNE 2022

Application for approval of the Tasman Council Enterprise Agreement 2021

An application has been made for approval of an enterprise agreement known as the Tasman Council Enterprise Agreement 2021 (Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (Act). The Agreement is a single enterprise agreement.

The Employer has provided written undertakings (Undertakings). A copy of the Undertakings is attached in Annexure A to this decision. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or

(b) result in substantial changes to the Agreement.

The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

Pursuant to subsection 190(3) of the Act, I accept the Undertakings. The Undertakings are taken to be a term of the Agreement.

Subject to the Undertakings, I am satisfied that each of the requirements of sections 186, 187, 188 and 190 as are relevant to this application for approval have been met.

The application was not lodged within 14 days after the agreement was made. Pursuant to subsection 185(3)(b) of the Act, in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

The Australian Municipal, Administrative, Clerical and Services Union and the Transport Workers’ Union of Australia each being a bargaining representative for the Agreement, have each given notice under section 183 of the Act that it wants the Agreement to cover the organisation. In accordance with subsection 201(2) of the Act, I note that the Agreement covers each organisation.

The Agreement is approved and, in accordance with section 54 of the Act, will operate from 26 June 2022. The nominal expiry date of the Agreement is 30 June 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Fair Work Commission, Tasman Council sought approval of a proposed enterprise agreement. The applicant, Tasman Council, is a local government body in New South Wales. The proposed agreement, Tasman Council Enterprise Agreement 2021, aims to govern the terms and conditions of employment for certain employees of the council. The dispute centred on whether the proposed agreement complied with the relevant provisions of the Fair Work Act 2009 and whether it was in the best interests of the employees. The legal issues revolved around the interpretation of the relevant statutory provisions and the assessment of the proposed agreement's compliance with the requirements of the Fair Work Act. The court had to determine whether the proposed agreement was certified as a protected action under the Fair Work Act, and whether it met the statutory criteria for approval.

The Fair Work Commission examined the proposed agreement against the legislative framework, focusing on the provisions regarding the negotiation, content, and approval of enterprise agreements. The court assessed whether the proposed agreement complied with the procedural requirements, including the necessity of genuine bargaining between the parties, and whether it met the substantive requirements, such as the inclusion of minimum entitlements and provisions for dispute resolution. The court also considered whether the proposed agreement was in the best interests of the employees and whether it provided for fair and reasonable terms. The Fair Work Commission found that the proposed agreement complied with the statutory requirements and was in the best interests of the employees. The court concluded that the proposed agreement met the necessary criteria for approval and granted the application for approval of the Tasman Council Enterprise Agreement 2021. The final orders included the approval of the proposed agreement, which will govern the employment terms and conditions for the employees of Tasman Council.

Tasman Council

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established