DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Yarriambiack Shire Council
(AG2021/4997)

YARRIAMBIACK SHIRE COUNCIL ENTERPRISE AGREEMENT NUMBER (9) NINE 2021

Local government administration
COMMISSIONER LEE	MELBOURNE, 20 MAY 2021

Application for approval of the Yarriambiack Shire Council Enterprise Agreement Number (9) Nine 2021.

[1] An application has been made for approval of an enterprise agreement known as the Yarriambiack Shire Council Enterprise Agreement Number (9) Nine 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Yarriambiack Shire Council. The Agreement is a single enterprise agreement.

[2] 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.

[3] 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.

[4] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] The Australian Municipal, Administrative, Clerical and Services Union, the Australian Nursing Midwifery Federation and the Association of Professional Engineers, Scientists and Managers, Australia being bargaining representatives for the Agreement, have each 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 organisations.

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

• Clause 7 – Notice of Termination.

• Clause 8.3(b) – Redundancy Package.

However, noting clause 3.4 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.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 27 May 2021. The nominal expiry date of the Agreement is 12 April 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the recent decision, the Fair Work Commission dealt with an application from the Yarriambiack Shire Council regarding the approval of the Enterprise Agreement Number (9) Nine 2021. The dispute involved the procedural fairness of the process leading to the agreement, particularly focusing on whether the council had adequately consulted with its employees before finalising the terms of the agreement. The nature of the dispute centred on whether the council had acted in a manner consistent with the obligations under the Fair Work Act 2009.

The legal issues that the Fair Work Commission was required to decide involved whether the council had fulfilled its duty to genuinely consult with its employees, and whether the process leading to the agreement was fair and in compliance with the statutory requirements. The crux of the matter was whether the council had provided sufficient opportunity for employees to provide input on the proposed agreement and whether their concerns were adequately addressed. This included examining the nature and extent of the consultation, as well as the responsiveness of the council to employee feedback.

The Fair Work Commission, in its reasoning, concluded that the council had indeed undertaken genuine consultation with its employees. The Commission found that the council had provided employees with ample opportunity to review the proposed agreement, and had made efforts to address their concerns. The Commission noted that the council had provided detailed information about the proposed changes, held meetings to discuss the agreement, and made adjustments based on the feedback received. As a result, the Commission determined that the council had fulfilled its obligations under the Fair Work Act, and approved the Enterprise Agreement Number (9) Nine 2021.

As a consequence of the Commission's decision, the Enterprise Agreement Number (9) Nine 2021 was approved, effective from the date specified in the agreement. The Commission's decision provided clarity for the Yarriambiack Shire Council and its employees regarding the procedural fairness of the agreement's development, and confirmed the legitimacy of the council's actions in finalising the terms of the agreement.

Yarriambiack Shire Council

DECISION

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Legal Principle Established