Waratah-Wynyard Council

[2024] FWCA 4443

[2024] FWCA 4443

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Waratah-Wynyard Council

(AG2024/4611)

WARATAH-WYNYARD COUNCIL ENTERPRISE AGREEMENT 2025

Local government administration
COMMISSIONER REDFORD	MELBOURNE, 16 DECEMBER 2024

Application for approval of the Waratah-Wynyard Council Enterprise Agreement 2025

1. An application has been made for approval of an enterprise agreement known as the Waratah-Wynyard Council Enterprise Agreement 2025 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Waratah-Wynyard Council. The Agreement is a single enterprise agreement.

Undertakings

1. In response to several issues raised with Waratah-Wynyard Council in relation to its application, it has provided written undertakings, a copy of which are attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement. 

1. The undertakings relate to:  

a.Definition of a shift worker

Relationship with the National Employment Standards.

1. Clause 1.5 of the Agreement provides that the National Employment Standards (NES) applies to employees covered by the agreement except where the agreement provides a more favourable outcome (NES precedence clause). On this basis, I am satisfied that the apparent inconsistencies with the NES outlined below do not prevent the approval of this agreement:   

1. Clause 12.1(d) of the Agreement provides for the withholding of monies in circumstances where an employee has given insufficient notice of resignation. Clause 12.1(d) provides that in these circumstances, the employer “has the right to withhold monies due to the employee to a maximum amount equal to the amount the employee would have received for the period of notice not given”. This clause appears to permit the employer to deduct monies from employee’s entitlements under the NES (such as notice of termination, accrued but unused annual leave or long service leave on termination). Accordingly, this clause may be inconsistent with Chapter 2 Part 2.2 Division 2 of the Act however, when read in conjunction with the NES precedence clause (clause 8(a)) will have no effect to the extent of any inconsistency.

Consideration

1. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

1. The Australian Municipal, Administrative, Clerical & Services Union Vic/Tas Authorities & Services Branch (ASU) being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the ASU.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from Wednesday 1 January 2025.

COMMISSIONER

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ANNEXURE A