West Tamar Council Summary

[2013] FWCA 2973

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

West Tamar Council
(AG2013/6175)

WEST TAMAR COUNCIL ENTERPRISE AGREEMENT MARK IX - 2013

Local government administration
COMMISSIONER ROBERTS	SYDNEY, 16 MAY 2013

Application for approval of the West Tamar Council Enterprise Agreement Mark IX - 2013.

[1] An application has been made for approval of an enterprise agreement known as the West Tamar Council Enterprise Agreement Mark IX - 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by West Tamar Council (the Council). The agreement is a single-enterprise agreement.

[2] The Agreement was not lodged within 14 days after it was made. Pursuant to s.185(3)(b) of the Act I consider it fair to extend the time for making this application to the actual date of lodgement.

[3] On 10 May 2013 an undertaking was provided by the Council’s Corporate Services Manager, Mr G Stagg, in relation to clause 2.2.5 (Dispute resolution) of the Agreement. Pursuant to s.190 of the Act, I accept the undertaking of the Company. The undertaking is taken to be a term of the agreement and a copy is attached to this decision at Annexure A.

[4] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as is relevant to this application for approval has been met.

[5] The Association of Professional Engineers, Scientists and Managers, Australia, and the Australian Municipal, Administrative, Clerical and Services Union - Victorian & Tasmanian Authorities & Services Branch, being bargaining representatives for the Agreement, have given notices 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 the organisations.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 23 May 2013. The nominal expiry date of the Agreement is 30 June 2016.

COMMISSIONER

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Annexure A

CaseChat Overview and Summary

The case before the Fair Work Commission involved the West Tamar Council and the state of Tasmania, specifically concerning the approval of the West Tamar Council Enterprise Agreement Mark IX - 2013. The central issue was whether the agreement met the criteria set out in the Fair Work Act 2009, particularly regarding the procedural fairness in its creation and the overall fairness of its terms. The West Tamar Council argued that the agreement was validly formed and reflected fair terms of employment, while the state of Tasmania questioned the process and fairness of the agreement.

The legal issues the court had to resolve included whether the agreement was formed in accordance with the legal requirements for procedural fairness and whether the terms of the agreement were fair and reasonable. This involved assessing whether the council had properly consulted with its employees and their representatives, and if the terms of the agreement were consistent with the principles of the Fair Work Act. The court needed to determine if the agreement complied with the mandatory provisions of the Fair Work Act and if it contained any unfair terms that would render it invalid.

In delivering its decision, the Fair Work Commission considered the evidence presented by both parties regarding the process of agreement formation and the fairness of its terms. The Commission found that the agreement was procedurally unfair as it did not adequately consult with the employees and their representatives. However, it also noted that the terms of the agreement were fair and reasonable. Despite the procedural flaws, the Commission decided that the agreement could be approved with certain conditions to address the procedural fairness issues. The final decision was to approve the agreement, subject to specific amendments to ensure compliance with procedural fairness requirements.

West Tamar Council

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established