s.185 - Application for approval of a single-enterprise agreement

Warrnambool City Council Trading AS City of Warrnambool

WARRNAMBOOL CITY COUNCIL ENTERPRISE AGREEMENT NO 10 - 2025

Application for approval of the Warrnambool City Council Enterprise Agreement No 10 - 2025

[1] An application has been made for approval of an enterprise agreement known as the Warrnambool City Council Enterprise Agreement No 10 - 2025 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Warrnambool City Council Trading AS City of Warrnambool (City of Warrnambool). The Agreement is a single enterprise agreement.

[2] The F17B Declaration filed in support of this application indicated that there were 570 employees covered by the agreement at the time of the vote, 373 employees cast a valid vote and 242 voted to approve the agreement. It also indicated that 300 of those employees were casual employees. Taking into account the decision of the Full Bench in Appeal by Kmart Australia Limited & Ors[1] I was concerned that if employees voted in the ballot who were not eligible to vote the outcome may have been affected. However, City of Warrnambool confirmed that there was an error in its declaration, and there were 732 employees covered by the agreement at the time of the vote. It also confirmed that only 136 casual employees participated in the vote, being the number of casual employees eligible to participate (by having been rostered to work during the access period). On this basis, I am satisfied that only those employees who were eligible to vote participated in the vote and its outcome was not affected by the inclusion of ineligible employees.

[3] In response to several issues raised with City of Warrnambool in relation to its application, it has provided written undertakings, a copy of which are 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.

[4] The undertakings relate to:

1. Clause 12.4 - Trainee Rates

2. Clause 12.13.4 - Supported Wage Rates

3. Clause 1.5(c) - Consultation Term

Interaction with the National Employment Standards

[5] Clause 1.5(b) of the Agreement provides that where there are matters in the National Employment Standards (NES) which are not specifically included in the agreement then they shall apply to all employees covered by the agreement. The clause further provides that where the NES provide entitlements to employees which are more beneficial than those provided for in the Agreement then the provisions of the NES shall apply to the extent of any inconsistency (the NES precedence clause). On this basis, I am satisfied that the apparent inconsistencies with the NES outlined below do not prevent the approval of this agreement:

1. Clause 5.8(ii) of the Agreement states severance pay is calculated on the basis of 2 weeks for each completed year of service. Section 119(2) of the Act provides for a severance payment calculated at 4 weeks in circumstances where an employee has worked for one year, but less than two years. On the basis of the NES precedence clause, the more favourable entitlement provided for in the NES will apply.

[6] 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.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate 7 days after approval.

[1] [2019] FWCFB 7599

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