Yarra City Council

[2021] FWCA 7209

[2021] FWCA 7209

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Yarra City Council
(AG2021/8524)

YARRA CITY COUNCIL ENTERPRISE AGREEMENT 2021 - 2025

Local government administration
DEPUTY PRESIDENT MANSINI	MELBOURNE, 20 DECEMBER 2021

Application for approval of the Yarra City Council Enterprise Agreement 2021 – 2025.

[1] Yarra City Council has applied for approval of a single enterprise agreement known as the Yarra City Council Enterprise Agreement 2021 – 2025 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] Since the application was made, the Commission inquired about the contents of the application and whether the pre-approval requirements were met and whether the Agreement passes the “better off overall” test. Further information and evidence was provided in relation to these concerns.

[3] Yarra City Council sought to correct a typographical error in the original application, by filing an amended statutory declaration. In the circumstances, I am satisfied that this amendment should be allowed and that it is appropriate to do so pursuant to s.586 of the Act.

[4] The cohort of employees identified on the Applicant’s statutory declaration as covered by the Agreement at the time of the vote included a number of casual employees. Yarra City Council provided further evidence (which was not opposed) to satisfy the Commission that:

a) all employees, who were employed at the relevant time(s) 1 and covered by the Agreement, were requested to vote; and
b) of the employees who were requested to vote, a proportion of casual employees did not work a shift in the relevant period, however even if those employees had cast a vote it would have been immaterial to the outcome.

[5] I am satisfied, on the evidence before the Commission, that the impact of the Applicant requesting a broader than strictly eligible cohort of employees to vote was immaterial and does not prevent approval by the Commission. 2

[6] On a global assessment, and taking into account the identified benefits and detriments, I am satisfied that the Agreement passes the “better off overall” test in accordance with s.186(2)(d).

[7] Noting clause 6.2 of the Agreement, I am satisfied that the more beneficial entitlements of the National Employment Standards in the Act (NES) will prevail where there is an inconsistency between the Agreement and the NES.

[8] On the basis of the material contained in the application, further information provided on request of the Commission, I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

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

[10] The Agreement was approved on 20 December 2021 and, in accordance with s.54, will operate from 27 December 2021. The nominal expiry date of the Agreement is 30 June 2025.

DEPUTY PRESIDENT

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 1   Appeal by SDA and others [2019] FWCFB 7891.

 2   National Tertiary Education Industry Union v Swinburne University of Technology [2015] FCAFC 98.