Yarra Plenty Regional Library Service T/A Yarra Plenty Regional Library

[2015] FWCA 6313

[2015] FWCA 6313

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Yarra Plenty Regional Library Service T/A Yarra Plenty Regional Library
(AG2015/4611)

YARRA PLENTY REGIONAL LIBRARY SERVICE ENTERPRISE AGREEMENT, 2015-2018

Local government administration
COMMISSIONER BISSETT	MELBOURNE, 10 SEPTEMBER 2015

Application for approval of the Yarra Plenty Regional Library Service Enterprise Agreement, 2015-2018.

[1] An application has been made for approval of an enterprise agreement known as the Yarra Plenty Regional Library Service Enterprise Agreement, 2015-2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Yarra Plenty Regional Library Service T/A Yarra Plenty Regional Library (the Applicant). The agreement is a single-enterprise agreement.

[2] In accordance with s.190 of the Act I sought an undertaking from the employer with respect to the Agreement. I have accepted the undertaking provided.

[3] In accordance with s.191(1) of the Act the undertaking is taken to be a term of the Agreement. A copy of the undertaking is attached as an annexure to this decision.

[4] 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.

[5] In considering if the Agreement meets the requirements of the Act I questioned the Applicant as to whether the Agreement contained consultation provisions in relation to changes to employee’s regular roster or ordinary hours of work in accordance with s.205(1A) of the Act. Without conceding that it did not the Applicant indicated that it was content for the model consultation clause to be taken to be a term of the Agreement.

[6] The Australian Municipal, Administrative, Clerical and Services Union (ASU), as a bargaining representative for the Agreement, indicated that it considered that the Agreement did provide for consultation about hours of work such that the requirements of s.205(1A) of the Act were met and drew my attention to clause 18 of the Agreement.

[7] I have considered clause 18 of the Agreement. Clause 18 provides that the Applicant will discuss with effected employees and their nominated representatives, the introduction of change, the effect of the change, measures to mitigate any adverse effects and so on. The clause places on obligation of the Applicant to discuss with employee’s any major change which may have a significant effect on employees prior to a definite decision being made to introduce the change. ‘Major effects’ include alteration to hours of work. It is on this basis that the ASU says that the obligation to consult about changes to rosters etc. is adequately covered by the Agreement.

[8] I do not agree. It seems to me that clause 18 of the Agreement does not provide an absolute obligation to consult employees about changes to rosters or hours of work but rather to other changes that may have an effect on hours of work. Section 205(1A) of the Act goes further than this. It requires any change to ordinary hours of work or regular roster – however they may come about – and the effects of that alteration to be the subject of consultation, not just other changes at work which have this effect. For this reason the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[9] In making this decision I note that the requirements to consult about major change in the workplace (as opposed to changes to rosters and hours of work) may be more stringent in the Agreement compared to the model clause but the inclusion of the model clause does not operate to extinguish the obligations that exist in the Agreement, rather it should be seen as adding to the obligations in the Agreement.

[10] The ASU, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2), I note that the Agreement covers the organisation.

[11] The Agreement is approved and, in accordance with s.54(1) of the Act, will operate from 17 September 2015. The nominal expiry date of the Agreement is 31 March 2018.

COMMISSIONER

Annexure

Printed by authority of the Commonwealth Government Printer

<Price code J, AE415712  PR571799>