West Daly Regional Council

[2021] FWCA 5137

[2021] FWCA 5137

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

West Daly Regional Council
(AG2021/6534)

WEST DALY REGIONAL COUNCIL ENTERPRISE AGREEMENT, 2021

Local government administration
DEPUTY PRESIDENT ASBURY	BRISBANE, 19 AUGUST 2021

Application for approval of the West Daly Regional Council Enterprise Agreement, 2021.

[1] The West Daly Regional Council (the Applicant) applies to the Fair Work Commission (the Commission) for approval of an enterprise agreement known as the West Daly Regional Council Enterprise Agreement, 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] Clause 74 of the Agreement deals with Abandonment of employment by deeming an employee who is absent from work for five consecutive days without reasonable cause, as having resigned.  In relation to such a clause, a Full Bench of the Commission in Bienias v Iplex Pipelines Australia Pty Limited 1 made the following observations:

“[39] A deeming provision by its nature deems that a thing, act or event having particular characteristics but which may or may not also be another thing, act or event, to be that other thing, act or event. In this case, an employee’s absence for the period described in the paragraph is deemed to be abandonment of employment after taking on the characteristics described in the paragraph, whether or not as a matter of fact or law the employee has abandoned his or her employment.

[40]The employment has not been terminated by reason thereof, nor does the paragraph suggest that the employment is terminated. In our view, it would be extraordinary for the paragraph to operate as automatically terminating the employment irrespective of the wishes of the employer. Thus under the automatic termination theory, the employer would be prevented from continuing to employ the employee, waiting a further period before deciding whether to terminate the employment of the employee or taking other disciplinary action short of termination of employment.

[41] In truth, once an employee is deemed pursuant to clause 21 of the Award to have abandoned his or her employment, the employment of the employee does not come to an end nor is the employer required to end the employment by terminating it. In order to do so, we consider the employer must take the additional step of terminating the employment and if it does not do so employment continues.” 2

[3] At [58] the Full Bench went on to find that such a clause is detrimental when compared to the National Employment Standards, because it deprives an employee of both the written notice of the day of termination requirement in s.117(1) of the FW Act, and except in the case of serious misconduct, the receipt of notice or compensation in lieu of notice as required by ss.117(2) and (3).

[4] It is arguable that clause 74 of the Agreement in the present case has a similar effect to the clause considered by the Full Bench in Bienias and accordingly is inconsistent with the National Employment Standards. However, I am satisfied that this issue is addressed by clause 3.1 the Agreement which provides that where the National Employment Standards are more beneficial to an employee, then the more beneficial provision will apply. I also note that pursuant to s. 55 of the FW Act, to the extent that clause 74 of the Agreement excludes a term of the NES, it has no effect.

[5] The United Workers’ Union being a bargaining representative for the Agreement, has 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 this organisation.

[6] I am satisfied, on the basis of information set out in the Form F16 Application for approval of an enterprise agreement, the Form F17 Employer’s declaration in support of an application for approval of the Agreement and responses to requests for further information provided by the Applicant, that each of the requirements of ss. l86, 187 and 188 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account ss.186(3) and (3A), and on the basis of the information contained in the Form F17, I am satisfied that the group of employees covered by the Agreement was fairly chosen.

[7] The Agreement is approved in accordance with s.54 of the Act and will operate from 26 August 2021. The nominal expiry date of the Agreement is 30 June 2024.

DEPUTY PRESIDENT

 1   [2017] FWCFB 38.

 2   Ibid at [39] – [41].

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