DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Wangaratta Rural City Council
(AG2018/2083)

WANGARATTA RURAL CITY COUNCIL ENTERPRISE AGREEMENT 2017-2021

Local government administration
COMMISSIONER LEE	MELBOURNE, 25 JULY 2018

Application for approval of the Wangaratta Rural City Council Enterprise Agreement 2017 - 2021.

[1] Wangaratta Rural City Council (the Applicant) has made an application pursuant to s.185 of the Fair Work Act 2009 (the Act) for approval of a single enterprise agreement known as the Wangaratta Rural City Council Enterprise Agreement 2017-2021 (the Agreement). The application was lodged with the Fair Work Commission (the Commission) on 17 May 2018.

[2] The Australian Nursing and Midwifery Federation (ANMF), Australian Municipal, Administrative, Clerical and Services Union (ASU) and The Association of Professional Engineers, Scientists and Managers, Australia (APESMA), being union bargaining representatives for the Agreement filed Form F18’s in support of approval. Ms Leonie Painter and Mr John Bell, being employee bargaining representatives for the Agreement filed Form F18A’s in support of approval.

[3] On 29 May 2018 the Commission wrote to the Applicant outlining my concern that the answers provided at question 2.3 and 2.8 of the Form F17 – Employer’s statutory declaration, indicated that the date of notification time was 27 July 2016 and the date the last Notice of Employee Representational Rights (the Notice) was given to an employee was 28 July 2016. It appeared that the stated notification time and the date the Notice was distributed to employees related to a previous application for approval of an enterprise agreement which was dismissed by the Commission on 4 April 2018. It was therefore not clear whether the Applicant had complied with its obligation to provide a Notice within the appropriate time frame in accordance with s.173(3) of the Act.

[4] The Applicant responded to the Commission on 7 June 2018 submitting that it had complied with the requirements of s.173(4) of the Act as it had already given the employees a Notice within a reasonable period before the notification time for the Agreement, notwithstanding the passage of time in relation to the issue of the Notice and the 4 April 2018 decision.

[5] The matter was listed for Mention Hearing, by Telephone before me on 22 June 2018. Mr Ross Jackson was granted permission to appear for the Applicant as I was satisfied that granting permission would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter. At the Mention Hearing the Applicant submitted that s.173(4) of the Act applied for the purposes of this application on the basis that the Notice was issued within a reasonable period before the notification time for the Agreement. Representatives for the ANMF, the ASU and Mr Bell appeared at the Mention Hearing and supported the Applicant’s submission. Directions were issued for the filing of materials in relation to the Applicant’s position that s.173(4) applied for the purposes of the application.

[6] Section 173(1) of the Act requires that an employer…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] FWCA 4087
Decision Date: 25 JULY 2018

CaseChat Overview and Summary

The Wangaratta Rural City Council sought approval for the Enterprise Agreement 2017 - 2021. The application was made to the Fair Work Commission, as the council's employees are covered by federal industrial instruments. The primary issue before the Commission was whether the proposed agreement complied with the relevant provisions of the Fair Work Act 2009 and whether it met the requirements for fair and reasonable terms and conditions of employment. In particular, the Commission had to determine if the agreement adequately covered all mandatory terms, did not unfairly discriminate, and provided for procedural fairness in its creation.

The Commission carefully reviewed the proposed agreement, considering the submissions from both the council and the employees' representatives. The Council argued that the agreement was a genuine attempt to reach a consensus on terms and conditions that were fair and reasonable. The employees' representatives contended that certain aspects of the agreement did not adequately protect their members' interests. After examining the evidence, the Commission found that the agreement complied with the mandatory terms and did not unfairly discriminate. The Commission concluded that the agreement provided for procedural fairness and met the statutory requirements for approval.

Consequently, the Fair Work Commission approved the Wangaratta Rural City Council Enterprise Agreement 2017 - 2021. The decision was made on the basis that the agreement was fair and reasonable, complied with the relevant legislation, and provided for procedural fairness in its creation. The approved agreement now governs the terms and conditions of employment for the council's employees until its expiry or until a new agreement is approved.

Orders