Application for approval of the Banyule City Council Enterprise Agreement No. 9 2025.

[1] An application has been made for approval of a single enterprise agreement known as the Banyule City Council Enterprise Agreement No. 9 2025 (the Agreement). The application was made pursuant s. 185 of the Fair Work Act 2009 (the Act). The application has been made by Banyule City Council (employer).

[2] The Australian Municipal, Administrative, Clerical & Services Union (ASU), Australian Nursing and Midwifery Federation (ANMF) and the Association of Professional Engineers, Scientists and Managers Australia (APESMA), being bargaining representatives for the Agreement, have each given notice under s.183 that they want the Agreement to cover them. In accordance with s.201(2) I therefore note that the Agreement covers each of the ASU, ANMF and APESMA. Each of those organisations have also lodged declarations in connection with the application. ANMF and ASU support the approval of the Agreement, APESMA express no view on the matter.

[3] Prior to approving the agreement, it was necessary to make some further enquiries of the employer and the bargaining representatives relating to following matters:

• (a) It was initially unclear what APESMA's role had been in bargaining. Clause 3 of the Agreement suggested APESMA is covered by the Agreement, but it was not identified as a Bargaining Representative on the employer's F16, notwithstanding having been invited to bargain on 18 February 2025. APESMA had not signed the Agreement initially submitted with Application, nor had it provided an F18 at the time the application was lodged.

• (b) The signature page of the Agreement did not contain any addresses for the signatories, as required by regulation 2.06A(2)(b)(i) of the Regulations.

• (c) The employer's F17B suggested that no material was incorporated by reference. However, clauses 13.1-13.3 of the Agreement directly referenced parts of the Victorian Local Government Award as a source of the wages/and or conditions for particular categories of employees, and clause 64.5 provided for provisions of the Victorian Local Government Award to apply where more favourable. The information provided with the application suggests that the Victorian Local Government Award was not distributed or made available to employees when the Agreement was distributed prior to the vote. This raises concerns as to whether the agreement was genuinely agreed to, having regard to paragraphs 4-7 of the Statement of Principles.

• (d) There appeared to be an error in the employers F17B relating to the timing of the vote, which required clarification.

• (e) The agreement sought to provide a unified definition of shiftworker across both employees who were covered by the Victorian Local Government Award and the Nurses (ANMF - Victorian Local Government) Award 2015, in circumstances where there were differences between how shiftworkers were defined under those Awards. This raised a concern regarding compliance with sections 196, 187(4) and 87(1)(b) of the Act,

• (f) The notice and evidence requirements for the utilisation of personal leave contained in clauses 31.3 and 31.4.5 of the Agreement set fixed time limits for the provisions of such notice and evidence. Such strict requirements were not reflected in subsections 107(2) and 107(3) of the Act. The parties were invited to consider whether the NES precedence provision at clause 3.4.4 of the Agreement was sufficient to deal with this discrepancy, or whether an undertaking was required.

• (g) Clause 31.6.1 of the Agreement appeared to require deductions of leave in advance debts from any monies due to an employee on termination of employment. Submissions were sought with respect to whether the apparent capacity to deduct from redundancy, severance and annual leave payments conforms with the NES and (if not) whether this is remedied by the NES precedence provision at clause 3.4.4 of the Agreement or whether undertakings were required. The were also invited to consider the residual enforceability of this requirement in light of section 326 of the Act.

• (h) The parties were referred to section 104 of the Act and their views were sought on whether the exclusion of stillbirth and miscarriage related compassionate leave from clause 33.1 of the Agreement was remedied by the NES precedence provision at clause 3.4.4 of the Agreement or whether an undertaking was required?

• (i) The parties were referred to the decision of the Full Bench [2018] FWCFB 139 and informed of concern that Clause 61 of the Agreement bore some similarity to abandonment of employment clauses that were removed from the modern award system. The parties were invited to make submissions concerning whether Section 56 or the Act and/or the NES precedence provision at clause 3.4.4 of the Agreement adequately dealt with the potential exclusion of section 117 of the Act, or whether an undertaking was required.

• (j) Some information matching particular classifications in the Agreement to their Award counterparts had not been provided with the Agreement, such that it was not possible to perform an better off overall assessment for employees within certain classifications.

• (k) There was a concern that clause 19 of the Agreement, which provided for annualised salaries, may not have provided sufficient safeguards to ensure that all employees who accept annualised salaries were better of overall. The parties were informed that the identical clause in the extant agreement had been met with a similar concern when it was lodged for approval and an undertaking had been given to address it. In addition, clarity was sought as to whether clause 19 was intended to be applied to employees covered by the Nurses (ANMF - Victorian Local Government) Award 2015.

• (l) Clause 26 of the Agreement appeared to permit agreements to work shifts of ordinary hours (without overtime) of unlimited duration. There were limits on ordinary hours in the underlying awards, so an issue arose as to whether employees concerned would be better off overall.

• (m) Clause 27.3.2 of the Agreement appeared to provide the employer with a discretion to decline to pay out banked time in lieu and rostered days off that had reached what was otherwise expressed as a time limit. Clarity was sought as to the operation of this provision and its impact on the better off overall assessment.

• (n) Clause 13.1 of the Agreement appeared to provide no benefit at all to trainees and simply applied the Award. It was not apparent how trainees would be better off overall under this arrangement, and the parties were invited to consider this proposition. The parties were also alerted to the fact that clause 13.1 was in identical terms in the extant agreement and undertaking had been provided on that occasion to address the concern that had arisen.

• (o) Clause 13.3 of the Agreement provided that terms and conditions for apprentices were as per the Agreement save for rates of pay, which would be in accordance with the Victorian Local Government Award. Assistance was sought from the parties in determining how apprentices would be better off overall in these circumstances. The parties were also alerted to the fact that an undertaking had been provided on that last occasion to address the concern that had arisen with the corresponding clause in the extant agreement.

(p) Schedules 6.1 - 6.4 provide for specified annualised salaries and note the entitlements that are intended to be compensated for within those annualised salaries. In no case is the casual loading specified as being compensated for. This raises the issue of whether casual employees paid these set annualised salaries (rather than being offered a choice to enter into such arrangements as was the case under clause 19) are better off overall. Furthermore, there is potential better off overall test concern with casual employees in particular on annualised salaries given the inherent variability of their shift patterns.[1]

(q) It appeared that part time employees who were required to work outside of their agreed hours would not (unless working more than 8 ordinary hours) be paid overtime. This raised a concern as to whether such employees would be better off overall in these circumstances, given the differing overtime provisions as between that Award and the Agreement.

(r) Clause 3.3.1 of Schedule 3 of the Agreement provided that early childhood employees are only entitled to TOIL, rather than overtime. This is quite different to the requirements under clause 23 of the Victorian Local Government Award. The parties were asked on what basis the Commission can be satisfied that all such employees will be better off overall and given an opportunity to formulate an undertaking to address this issue.

[4] In correspondence with chambers, the following resolutions were reached in respect of these issues:

(a) The employer advised that APESMA did participate in the bargaining and APESMA ultimately provided a declaration in form F18. This was sufficient to resolve the concern as to coverage, it is immaterial that APESMA did not sign the Agreement in circumstances where other bargaining representatives have done so.[2]

(b) A replacement signature page has been provided which complies with the regulations. This will be merged into the Agreement prior to its publication.

(c) The employer initially advanced a submission that the failure to provide or provide access to the Victorian Local Government Award was a minor technical error that did not disadvantage employees. The difficulty with this submission, which utilises the language of subsection 188(5), is that subsection 188(5) does not permit the forgiving of errors (whether minor technical ones or otherwise) in respect of all requirements and matters relevant to the question of whether the agreement has been genuinely agreed to. In further submissions the employer identified that clauses 13.1-13.3 which referenced the Victorian Local Government Award were concerned with the employment of specific categories of employees, namely apprentices, trainees and those on a supported wage. It was said by the employer, and not disputed by the other bargaining representatives, that there are currently no apprentices or trainees directly employed by the council. No submissions were advanced about the number of employees on a supported wage, however, it was said that clauses 13.1-13.3 were in identical terms as appear in the current agreement and, presumably, well understood. Further it was said that the only other clause that referenced the Victorian Local Government Award, clause 64.5, was again concerned with a specified category of employees, being workplace delegates. The persons who were the proponents of the clauses included the current workplace delegates who were active participants in bargaining, so it would be fair to assume that they understood the terms of the relevant award provision that they were insisting be incorporated. I note that the requirement on the Commission in section 188(1) is to "take into account" the Statement of Principles. That requires me to evaluate the matters in the Statement of Principles and give them due weight,[3] rather than slavishly apply them in a binary fashion. In any event, insofar as the Statement of Principles deals with the distribution of material incorporated by reference, they go no further than to specify that such distribution at a particular time will be "taken satisfy the requirement in paragraph 4" to provide "...a reasonable opportunity to consider a proposed enterprise agreement before voting on it, so that the employees can vote in an informed manner". The Statement of Principles does not profess to be an exclusive statement as to how that substantive requirement as to voting in an informed manner must be satisfied. In the circumstances of this matter, I do not think there was any prejudice to the employees' capacity to vote in an informed manner, and I consider this concern has been resolved by the materials provided the bargaining representatives.

(d) The employer confirmed that the date the vote concluded was 30 July 2025, which meets all relevant requirements.

(e) An undertaking was offered by the employer to address the concern regarding the definition of shiftworkers under the Agreement. The bargaining representatives were informed of this and did not object.

(f) The employer submitted the NES precedence clause was sufficient to deal with the inconsistency between the strict time limits for the provision of notice and evidence for personal leave in the Agreement as compared to the NES.

(g) An undertaking was offered by the employer to address the concern regarding deductions on termination under clause 31.6.1. The bargaining representatives were informed of this and did not object.

(h) The employer submitted the NES precedence clause was sufficient to deal with the concern regarding stillbirth and miscarriage related compassionate leave.

(i) An undertaking was offered by the employer to address the concern regarding the abandonment of employment provisions at clause 61 of the Agreement. The bargaining representatives were informed of this and did not object.

(j) Additional information was received from the employer which aligned additional agreement classifications to award classifications. This assisted in the required analysis.

(k) An undertaking was offered by the employer to address the concern regarding the annualised salary provisions at clause 19 of the Agreement. It remined unclear whether the provision was applicable to Nurses, however the undertaking was sufficient to ensure all employees to whom it might apply would also be better off overall. The bargaining representatives were informed of this and did not object.

(l) An undertaking was offered by the employer to address the concern regarding the maximum duration of ordinary hours. The bargaining representatives were informed of this and did not object.

(m) An undertaking was offered by the employer to address the concern regarding the discretionary retention of time off in lieu and rostered days off under clause 27.3.2. The bargaining representatives were informed of this and did not object.

(n) An undertaking was offered by the employer to address the concern regarding the terms and conditions of trainees as provided for in clause 13.1 of the Agreement. The bargaining representatives were informed of this and did not object.

(o) An undertaking was offered by the employer to address the concern regarding the terms and conditions of apprentices as provided for in clause 13.3 of the Agreement. The bargaining representatives were informed of this and did not object.

(p) A clarification and an undertaking was offered by the employer to address the concern regarding the position of casual employees who might be covered by Schedules 6.1- 6.4 of the Agreement and receive an annual salary. The bargaining representatives were informed of this and did not object.

(q) An undertaking was offered by the employer to address the concern regarding the availability of overtime for part time employees required to work outside their agreed ordinary hours of work. The bargaining representatives were informed of this and did not object.

(r) An undertaking was offered by the employer to address the concern regarding the availability of overtime for early childhood employees. The bargaining representatives were informed of this and did not object.

[5] Subject to the undertakings referred to above and having taken into account the materials provided with the application for approval and since, I am satisfied that each of the requirements of ss. 186, 187, 188 and 190 as relevant to this application for approval have been met. The undertakings are taken to be at term of the Agreement and are provided at Annexure A of this decision. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement. Pursuant to section 205(2), the model consultation term is taken to be a term of the Agreement.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 30 September 2025. The nominal expiry date of the Agreement is 30 June 2029.

[1] [2018] FWCFB 3610 at [121].

[2] See regulation 2.06A(2)(a) of the Fair Work Regulations 2009

[3] See CFMEU v. FWBC [2014] FWCFB 7194 at [13].

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