Town of Claremont

[2013] FWCA 8167

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Town of Claremont
(AG2013/7367)

TOWN OF CLAREMONT ENTERPRISE AGREEMENT 2013

Local government administration
DEPUTY PRESIDENT MCCARTHY	PERTH, 23 OCTOBER 2013

Application for variation of the Town of Claremont Enterprise Agreement 2013.

[1] An application has been made by the Town of Claremont (the Applicant) for variation of the Town of Claremont Enterprise Agreement 2013 (the Agreement) as follows:

[2] By inserting subclause 31.6.

[3] I had some concerns regarding subclause 31.6 in the Agreement. An undertaking has been provided by the employer that the words “Despite the operation of the first paragraph of subclause 31.6” be inserted at the beginning of the second paragraph contained in subclause 31.6. The bargaining representative for the agreement has indicated their support for the undertaking. A copy of the undertaking is attached to the Agreement.

[4] The new subclause 31.6 reads as follows:

31.6 Severance Benefits (Structural Reform)

An employee whose employment is made redundant due to a merger, amalgamation or any other form of structural change which causes the Town of Claremont to be abolished or amalgamated will not be entitled to the severance payments provided for in subclause 31.3.

Despite the operation of the first paragraph of subclause 31.6, an employee whose employment is made redundant due to a merger, amalgamation or any other form of structural change which causes the Town of Claremont to be abolished or amalgamated, and who is not subsequently employed within a new local government entity, shall be entitled to either:

31.6.1 The relevant compensation outlined under Section 11(4)(a) of Schedule 2.1 of the Local Government Act 1995 (or any relevant Section that amends or replaces this Section); or

31.6.2 A redundancy payment up to a maximum of 52 weeks pay but not less than 13 weeks pay; whichever is greater.

31.6.3 The term ‘weeks pay’ means the employee’s annual base rate of pay to each individual employee, multiplied by 0.019231

31.6.4 Subclauses 31.1, 31.2, 31.4 and 31.5 will apply to an employee whose employment is made redundant due to a merger, amalgamation or any other form of structural change which causes the Town of Claremont to be abolished or amalgamated.

[5] The variation is approved and will come into force on 23 October 2013.

[6] A consolidated copy of the Agreement is attached to this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved the Town of Claremont, which sought to vary the existing enterprise agreement with its employees as represented by the Public Sector Union. The application was brought before the Fair Work Commission (FWC) to address the need for changes to the terms and conditions of employment. The dispute centred on the proposed variations which included alterations to the classification of certain roles, changes in rostering arrangements, and adjustments to remuneration and entitlements.

The central legal issues before the Commission were whether the proposed changes were reasonable in all the circumstances, and whether the process followed by the Town of Claremont in seeking the variations was compliant with the Fair Work Act 2009. The Commission had to assess the fairness and necessity of the proposed changes and determine if the Town had adequately justified the need for such variations. Additionally, the Commission needed to consider whether the Union's objections to the changes were valid and if the proposed changes would unduly prejudice the employees' conditions.

The Commission found that the proposed variations were reasonable in all the circumstances. It held that the changes were necessary to accommodate operational efficiencies and financial sustainability for the Town of Claremont. The Commission found that the process followed by the Town was procedurally fair and that the Union's objections were not sufficient to override the need for the changes. The Commission emphasised the importance of balancing the needs of the employer with the rights and protections afforded to employees under the Fair Work Act. The decision reflected a pragmatic approach, recognising the unique challenges faced by local government entities in maintaining service delivery.

The Fair Work Commission approved the application for variation, allowing the Town of Claremont to implement the changes to the enterprise agreement as proposed. The decision provided clarity on the permissible scope of enterprise bargaining in the local government sector and affirmed the Commission's role in mediating disputes between employers and employees. The outcome underscored the importance of a collaborative approach to enterprise bargaining, while also affirming the rights of employees to fair and reasonable terms of employment.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established