Whitehorse Manningham Regional Library Corporation T/A Whitehorse Manningham Regional Library Corporation

[2023] FWCA 3135

[2023] FWCA 3135

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Whitehorse Manningham Regional Library Corporation T/A Whitehorse Manningham Regional Library Corporation

(AG2023/3126)

WHITEHORSE MANNINGHAM REGIONAL LIBRARY CORPORATION ENTERPRISE AGREEMENT 2022

Local government administration
COMMISSIONER MIRABELLA	MELBOURNE, 28 SEPTEMBER 2023

Application for approval of the Whitehorse Manningham Regional Library Corporation Enterprise Agreement 2022.

1. Whitehorse Manningham Regional Library Corporation (the Employer) has made an application for approval of an enterprise agreement known as the Whitehorse Manningham Regional Library Corporation Enterprise Agreement 2022 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the FW Act). The Agreement is a single enterprise agreement.

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the FW Act that commenced operation on 6 June 2023.

1. Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the FW Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. Question 18 of the Form F17A provides that the notification time for the Agreement was 7 October 2021.

1. Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The better off overall test provisions in Part 2-4 of the FW Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the agreement was made before 6 June 2023. Question 26.2 of the Form F17A provides that the Agreement was made 25 August 2023.

1. The Employer has provided written undertakings. A copy of the undertakings is 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. Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of sections 186, 187, 188 and 190, as are relevant to this application for approval, have been met.

1. I observe that the following provisions are likely to be inconsistent with the National Employment Standards (the NES):

   ·   Clause 16.4 – Redundancy pay

·   Clause 47.2 – Deduction/withholding of monies due to the employee under the NES on termination

·   Clause 47.4.1 – Abandonment of employment

·   Clause 52 – Compassionate leave

1. However, noting clause 6.1 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Australian Municipal, Administrative, Clerical and Services Union being a bargaining representative for the Agreement, has given notice under s.183 of the FW Act that it wants the Agreement to cover it. In accordance with s.201(2) and based on the declaration provided by the organisation, I note that the Agreement covers the organisation.

1. The Agreement was approved on 28 September 2023 and, in accordance with s.54, will operate from 5 October 2023. The nominal expiry date of the Agreement is 30 June 2024.

COMMISSIONER

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Annexure A