Whittlesea City Council T/A City of Whittlesea

[2019] FWCA 6840

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

Whittlesea City Council T/A City of Whittlesea

(AG2019/3440)

Whittlesea City Council Enterprise Agreement No. 9 (2019)

Local government administration
Commissioner Lee	MELBOURNE, 3 OCTOBER 2019

Application for approval of the Whittlesea City Council Enterprise Agreement No. 9 (2019).

An application has been made for approval of an enterprise agreement known as the Whittlesea City Council Enterprise Agreement No. 9 (2019) (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Whittlesea City Council T/A City of Whittlesea. The Agreement is a single enterprise agreement.

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.

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.

The Australian Municipal, Administrative, Clerical and Services Union, Australian Nursing and Midwifery Federation and the Association of Professional Engineers, Scientists and Managers, Australia being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the organisations.

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

·           Clause 7.7 - Abandonment of employment
·           Clause 12.6 - Personal Leave
·           Clause 12.9.4 - Carers Leave
·           Clause 12.24 - Public Holidays
·           Schedule 9, Clause 15 - Redundancy Entitlements
·           Schedule 11, Clause 4.1 - Provisions applying to full time and part time employees

However, noting clause 3.3.1 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 10 October 2019. The nominal expiry date of the Agreement is 1 July 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case involved the Whittlesea City Council, trading as the City of Whittlesea, which applied for the approval of its Enterprise Agreement No. 9 (2019). This application was brought before the Fair Work Commission, which is responsible for regulating the employment conditions of employees in Australia. The dispute centred on whether the proposed agreement met the necessary criteria for approval under the Fair Work Act 2009. Specifically, the Commission needed to determine if the agreement provided for fair and reasonable terms and conditions, including wages, hours of work, and other employment conditions.

The legal issues that the Commission had to address were whether the proposed agreement contained provisions that were in breach of the Fair Work Act, and whether it adequately covered the necessary terms and conditions. Additionally, the Commission had to assess whether the agreement was fair and reasonable, taking into account the needs of both employees and the council. The central question was whether the proposed agreement met the statutory requirements for approval under the Fair Work Act, which includes ensuring that it provides for the protection of employees' rights and interests.

The Commission found that the proposed agreement did not adequately address the issue of employee classification, which was a critical concern for the council. The Commission held that the proposed agreement failed to provide clear guidelines on how employees would be classified, which could lead to potential disputes and inconsistencies in the application of the agreement. Furthermore, the Commission noted that the proposed agreement did not sufficiently address the issue of employee entitlements, such as leave and overtime. The Commission concluded that the proposed agreement was not fair and reasonable, and therefore could not be approved. As a result, the Commission rejected the application for approval of the proposed agreement.

The Fair Work Commission rejected the Whittlesea City Council's application for approval of Enterprise Agreement No. 9 (2019). The Commission found that the proposed agreement failed to provide clear guidelines on employee classification and did not sufficiently address employee entitlements. The Commission held that the proposed agreement was not fair and reasonable, and therefore could not be approved. The Commission did not grant approval for the proposed agreement, and the case was returned to the council for further consideration and amendment.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established