REVIEW OF CLAUSES 7 AND 8 OF THE LOCAL GOVERNMENT OFFICERS’ (WESTERN AUSTRALIA) AWARD 2021 PURSUANT TO S 40B OF THE INDUSTRIAL RELATIONS ACT 1979 (WA)

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2023 WAIRC 00836

DELIVERED : thursday, 26 October 2023

FILE NO. : APPL 26 OF 2023

Applicant

AND

(Not Applicable)

Respondent

CatchWords : Industrial Law (WA) — Commission's Own Motion review of Award — Local Government Officers (Western Australia) Award 2021 — s 40B — Whether provisions obsolete or in need of updating — Enterprise flexibility clause — Facilitative provisions — Whether clauses permit agreement to alter effect of Award obligations — Whether evidence of disuse justifies removal

Legislation : Industrial Relations Act 1979 (WA)

Fair Work Act 2009 (Cth)

Minimum Conditions of Employment Act 1993 (WA)

Workplace Agreements Act 1993 (WA) 

Result : Award varied

Representation:

Mr C Fogliani of counsel on behalf of the Western Australian Municipal, Administrative, Clerical and Services Union of Employees

Mr N Ellery of counsel on behalf of the Western Australian Local Government Association

Case(s) referred to in reasons:

Amalgamated Metal Workers and Shipwrights Union of Western Australia & Ors v Anchorage Butchers Pty Ltd & Ors (1982) 62 WAIG 827

Bluescope Steel (AIS) Pty Ltd v Australian Workers’ Union [2019] FCAFC 84; (2019) 270 FCR 359

City of Cockburn v Western Australia Municipal, Administrative, Clerical and Services Union of Employees (WASU) & Ors [2023] WAIRC 00797

Civil Service Association of Western Australia Inc v Director-General, Department of Justice [2019] WAIRC 00713; (2019) 99 WAIG 1531

Commission’s Own Motion v Dardanup Butchering Co & Ors [2004] WAIRC 12690; (2004) 84 WAIG 2739

Commission’s Own Motion v Not applicable [2005] WAIRC 03121; (2007) 87 WAIG 898

Commission’s Own Motion v Not applicable [2007] WAIRC 00318; (2007) 87 WAIG 903

Confederation of Western Australian Industry (Inc) v The West Australian Timber Industry Industrial Union of Workers, South-West Land Division (1990) 71 WAIG 15

Jones v Dunkel [1959] HCA 8

National Tertiary Education Union v La Trobe University [2015] FCAFC 142; (2015) 254 IR 238

Ngala Family Resource Centre v The Australian Liquor, Hospitality and Miscellaneous Workers Union, Miscellaneous Workers Division, Western Australian Division (1997) 77 WAIG 2551

Safety Net Adjustments and Review - September 1994 (1994) 56 IR 114

The Australian Liquor, Hospitality and Miscellaneous Workers Union, Miscellaneous Workers Division, Western Australian Branch v Ngala Family Resource Centre and Others (1996) 76 WAIG 1658

The Australian Liquor, Hospitality and Miscellaneous Workers Union, Miscellaneous Workers Division, Western Australian Branch v Ngala Family Resource Centre & Ors (1998) 78 WAIG 3016

Reasons for Decision

1         Should the facilitative provisions of the Local Government Officers (Western Australia) Award 2021 (LGO Award) be removed because they are obsolete?

2         The Commission initiated this matter under s 40B of the Industrial Relations Act 1979 (WA) in relation to cl 7 of the LGO Award, headed ‘Enterprise Flexibility’ (Enterprise Flexibility clause) and cl 8 headed ‘Facilitative Provisions’. It was initiated in light of a concern that these provisions may be contrary to the scheme of the Act, which does not permit awards to be varied by an agreement of the employer and an employee with the effect of altering an obligation imposed by it, circumventing the union party and the Commission: s 114 and Ngala Family Resource Centre v The Australian Liquor, Hospitality and Miscellaneous Workers Union, Miscellaneous Workers Division, Western Australian Division (1997) 77 WAIG 2551 (Ngala).

3         The Western Australian Municipal, Administrative, Clerical and Services Union of Employees (WASU) and The Association of Professional Engineers, Australia (Western Australian Branch) Organisation of Employees are the union parties to the LGO Award. WASU participated in these proceedings. The Association did not.

4         There are 25 named respondents to the LGO Award, being local government employers. The named employers did not participate in these proceedings. However, the Western Australian Local Government Association (WALGA) was granted leave to intervene as the peak body for local government with members who are respondents to the LGO Award.

5         Section 40B(1) of the Act provides:

The Commission, of its own motion, may by order at any time vary an award for any one or more of the following purposes —

…

(d) to ensure that the award does not contain provisions that are obsolete or need updating;

(e) to ensure that the award is consistent with the facilitation of the efficient organisation and performance of work according to the needs of an industry and enterprises within it, balanced with fairness to the employees in the industry and enterprise.

6         The Enterprise Flexibility clause of the LGO Award purports to allow an employer and employees at the enterprise or workplace to make an agreement ‘about how the award should be varied so as to make the enterprise or workplace operate more efficiently according to its particular needs’. It provides a process for application to be made to the Commission to register any such agreement, but not limited to applications by a party to the LGO Award.

7         The Act does not provide for registration of agreements between an employer and employees. Industrial Agreements can be made by an employer and a registered organisation of employees, and registered under s 41.

8         WASU and WALGA agree that the Enterprise Flexibility clause infringes the scheme of the Act and, therefore, should be removed from the LGO Award. The reasoning of the Full Bench in City of Cockburn v Western Australia Municipal, Administrative, Clerical and Services Union of Employees (WASU) & Ors [2023] WAIRC 00797 is apposite. If the clause is invalid, then it is obsolete. Accordingly, the LGO Award should be varied to remove the Enterprise Flexibility clause.

9         WASU say that the facilitative provisions, or most of them, are also invalid and should be removed, or, if not invalid, they are obsolete by reason of their disuse and should be removed. WALGA disagrees.

10      ‘Facilitative provisions’ in industrial instruments are not uncommon. It is uncontroversial that awards may contain mechanisms about how the terms of an award will be applied at a particular workplace. The real controversy is whether this is all the facilitative provisions of the LGO Award do? Or do the provisions stretch beyond this to purport to enable variations to the award that infringe the scheme of the Act as described in Ngala?

The Ngala Principle

11      The controversy in this matter revolves around the application of the principles established by the Industrial Appeal Court in Ngala. Therefore, it is appropriate to start with an analysis of that decision.

12      The Industrial Appeal Court was dealing with an appeal from the Full Bench of the Commission following the Full Bench’s rejection of an enterprise flexibility provision in seven separate awards in the private health industry. The clause the Full Bench considered was in language drafted by the Commissioner at first instance:

38. — ENTERPRISE FLEXIBILITY PROVISIONS

(1) Subject to the provisions contained elsewhere in this clause an employer, and an employee or group of employees, covered by this Award may reach agreement upon terms and conditions of employment to meet the requirements of the employers enterprise and the aspirations of the employee or employees.

(2) Where a matter arises for consideration between an employer, and an employee or group or employees which—

(a) were it to be settled between them as a term of an enterprise flexibility agreement such a term would be inconsistent with a provision of this Award, and

(b) were an inconsistent term of any such agreement to be given legal force and effect it would apply to a current employee who is known to the employer to be a member of the Union, and

(c) if it be intended that the Western Australian Industrial Relations Commission be requested to exercise its powers to give legal force and effect to such an inconsistent term of any agreement, the employer shall notify the Union of the matter raised for consideration as soon as reasonably practicable after it arises and before the matter is settled as a term of any agreement.

(3) Nothing in this clause shall prevent an employee seeking advice from, or being represented by, the Union during negotiations with the employer.

(4) No employee shall lose any existing entitlement to earnings for working ordinary hours of work as a result of the implementation of an enterprise flexibility agreement, provided that an employer and an employee or groups of employees may agree on terms and conditions in the aggregate no less favourable to the employees than those prescribed by this Award for working ordinary hours of work.

(5) Where an enterprise flexibility agreement is made with the genuine consent of the employer and the majority of the employees covered by the scope of that agreement, the Union shall not unreasonably oppose the terms of the agreement.

(6) Any enterprise flexibility agreement made between the employer, and an employee or group of employees, shall be committed to writing and, if the Union participated in the related negotiations or it is intended that the agreement be given legal force and effect by the Western Australian Industrial Relations Commission pursuant to the Industrial Relations Act, 1979, the employer shall forward a copy of the agreement to the Secretary of the Union.

(7) An enterprise flexibility agreement made pursuant to this clause is entered into on the condition that, if an application be made to the Western Australian Industrial Relations Commission to give it legal force and effect by means of a variation to this Award, such variation is subject to the approval of the Western Australian Industrial Relations Commission and will, if approved, be made in the form of a schedule to this Award.

(8) Nothing in this clause shall be taken as limiting a right to apply the Western Australian Industrial Relations Commission to have the Commission exercise any one of its several powers that enable the Commission to give legal force and effect to an enterprise flexibility agreement.

13      The focus of the Full Bench and the Industrial Appeal Court’s consideration of this clause was the inclusion in it of a process for enterprise bargaining to produce an agreement inconsistent with the award, and the limitation on the union’s right to object to its incorporation into the award under sub‑clause 7.

14      In upholding the appeal from the Commissioner’s first instance decision, the Full Bench described the difficulty it saw:

…An award cannot be sought to be varied except by an organisation or association named as a party to it (or an employer who is bound by the award)…No‑one else can apply for a variation…

…

The Commission inserted a clause in this case which purports to exclude the applicant being engaged in negotiations with employers to achieve enterprise agreements…To do so is to provide a mechanism which might exclude an organisation which is a party to the award and represents employees covered by the award doing what it is entitled to do. The orders really set out, too, to create workplace agreements outside the framework of that Act [Workplace Agreements Act 1993], notwithstanding that in this State there are two separate systems, one the workplace agreement system created by the Workplace Agreements Act 1993, and the other, the award based system to which the Wage Fixing Principles apply…

…

The only way in which a variation to the award can be made on behalf of employees is by the applicant. The only way in which a s.41 agreement, which reflects an enterprise bargaining agreement, can be registered on behalf of employees is by the applicant. The clause inserted purported to provide a mechanism for employees to enter into agreements themselves with an employer to the exclusion of the appellant. There is no provision in the Act to enable this to occur. There is no provision within the [State Wage Fixing] Principles to enable this to occur. The Principles, as we have said, enable only s.41 agreements or award variations to reflect an enterprise bargaining agreement. Both mechanisms are only valid and enforceable because the Act provides for them. The clause is therefore contrary to the Principles.

The Australian Liquor, Hospitality and Miscellaneous Workers Union, Miscellaneous Workers Division, Western Australian Branch v Ngala Family Resource Centre and Others (1996) 76 WAIG 1658 at p 1662.

15      Justice Anderson, with whom Franklyn and Scott JJ agreed, affirmed the reasoning of the Full Bench.

16      The relevant principle established by the Industrial Appeal Court is that the award based system of the Act requires that any variation to an award be by application to the Commission, and to which the relevant union is a party. This principle is embodied by the following statements of his Honour Anderson J at p 2554:

…the attempted introduction into an award of provisions which in effect provide for a non‑union stream of wage determination is incongruous, and inconsistent with the [State Wage Fixing] Principles.

In my opinion, it does seem out of keeping with the present long standing legislative framework to have in an industrial award binding upon a union and to which the union is a principal party a provision which contemplates that the award may be varied on the striking of an agreement with a body of persons not a principal party to the award – especially as some of the body may be wholly opposed to the agreement. This seems to me to be, with respect, inimical with the award based system provided for in the Industrial Relations Act as that Act presently stands.

Whilst there may be, outside of the award system created by the Industrial Relations Act, through the medium of the Workplace Agreements Act, a means whereby substantially the same result can be achieved the question is whether it is a proper exercise of discretion on the part of the Commission to import into the award based system a non‑union stream, by the device of award amendment.

…

In my opinion a provision such as that which was inserted by the Commission at first instance into these awards takes enterprise bargaining at enterprise level well beyond the warrant provided in the State Wage Fixing Principles and does run counter to the main features of the award based system laid down by the Act and to the principal objects of the Act. By force of the Act it is absolutely necessary that the union must be heard upon any application for an award variation or upon any application for registration of a s.41 agreement; therefore I do not see how it could possibly “promote goodwill in industry” (s.6(a)), “encourage, and provide means for, conciliation with a view to amicable agreement thereby preventing and settling industrial disputes” (s.6(b)), “provide means for preventing and settling industrial disputes...with the maximum of expedition...” (s.6(c)), “provide for the observance and enforcement of agreements and awards made for the prevention or settlement of industrial disputes” (s.6(d)) to effectively shut the union out of negotiations in respect to amendments to its own award, allowing it to be heard only at the stage of formal application for variation or registration and then only if its opposition should be held not “unreasonable”. It enables an industrial outcome to be achieved which is coercive and enforceable against the union, and employees who are or are eligible to be members of the union, without union involvement and by amendment to the union’s own award through an agreement to which the union is not a party. There seems to me good reason to hold that within a legislative framework containing a statement of the objects recited above, a system of wage fixing by award variation which substantially excludes a party to the award from the process of negotiation is a system which is incomplete and less than whole.

17      The Industrial Appeal Court was not required to, and did not, consider clauses either expressly described as ‘facilitative provisions’ or which allowed for agreement on how particular award provisions could be applied in the workplace.

18      It is possible that when Anderson J refers to an ‘agreement’ varying the award, his Honour had in mind a comprehensive form of instrument applying to an enterprise, that is, a complete deal about terms and conditions. His Honour’s references to the Workplace Agreements Act 1993 (WA), the process of negotiation, and the ‘device of a non‑union stream’ all suggest that this was what his Honour’s reasons were directed at.

19      After the matter was remitted to the Full Bench, the parties agreed and filed a minute of consent orders, with the terms of a new enterprise flexibility provision for inclusion in the seven awards. The Full Bench subsequently made orders in accordance with that minute: The Australian Liquor, Hospitality and Miscellaneous Workers Union, Miscellaneous Workers Division, Western Australian Branch v Ngala Family Resource Centre & Ors (1998) 78 WAIG 3016. The final enterprise flexibility clause enabled enterprise level agreements to be made, subject to there being either an application to the Commission to vary the award, or an application for registration of an industrial agreement, to give effect to the enterprise level agreement.

20      As an aside, at least one of the awards that was the subject of the Ngala proceedings contained provisions permitting an employer and employee, or an employer and the union, to agree to alternative arrangements regarding work hours, overtime and wages at the workplace level. These provisions, which were part of the award prior to the Ngala proceedings, were allowed to remain after the Industrial Appeal Court decision. They remain in the award today: Enrolled Nurses and Nursing Assistants (Private) Award cl 7(1)(c), (2), (3), (6), (10), 8(4) and 26(7).

21      In City of Cockburn the Full Bench found that an Individual Flexibility Arrangement (IFA) clause proposed to be inserted in an industrial agreement under s 41 would be invalid and of no effect, because it purported to enable a person, as an employee not party to the industrial agreement, to enter into an ‘arrangement’ with the employer to purport to vary it, where that arrangement may deal with matters fundamental to the employment relationship: [135] and [147].

22      The Full Bench described the scheme of the Act at from [125] and following, concluding at [132]‑[134]:

[132] Within this scheme, an individual employee has no standing to make an application for an award or to seek to vary an award.  An individual employee has no standing to seek to register, or to vary, an industrial agreement that they will be, or are bound by.

[133] The only exception to the framework of awards and industrial agreements set out above, under the Act, made between registered organisations and employers, is the ability to make an EEA under Part VID.  This is an individual agreement between an employer and an employee that deals with any industrial matter, subject to the requirements of Division 2, which include the application of a ‘no disadvantage test’ in Division 6.  Importantly for present purposes, an EEA, whilst it prevents an award that would otherwise apply to the employee from having any effect, cannot be made while an industrial agreement is in force under the Act.  This gives clear effect to the objects of the Act in s 6(ad), promoting collective bargaining over individual agreements.

[134] Of course, there is nothing preventing an employer and an employee from agreeing to more generous terms and conditions of employment, over and above that prescribed by an award or an industrial agreement.  What the employer and employee cannot do, however, is to agree to purport to vary, or annul, a provision of an award or industrial agreement, having the effect of altering an obligation imposed by an award or industrial agreement.  Any such agreement is void, under s 114 of the Act.

23      The Full Bench described the concepts dealt with by the Full Bench in Confederation of Western Australian Industry (Inc) v The West Australian Timber Industry Industrial Union of Workers, South‑West Land Division (1990) 71 WAIG 15 and the Industrial Appeal Court in Ngala respectively as relevant to the matter before it. The Full Bench’s reasons for concluding the IFA clause was invalid were said to be the same as the reasons in these two cases: [144].

24      The Full Bench’s reasons in City of Cockburn make it clear that it is not just a comprehensive deal different to the award which is impermissible. An agreement about any provision which has the effect of altering an obligation imposed by the award is also impermissible.

25      WASU is correct in its submission that these concepts and principles prohibit provisions in an award that allow the employer to avoid an award obligation by reaching an agreement with an individual employee or a group of employees to the effect that the award obligation does not apply. This could also be expressed as reaching an agreement to sidestep, excuse, or get out of, an otherwise binding award obligation.

26      WASU is also correct in its submission that these concepts and principles do not inherently prohibit facilitative provisions as such.

What is a ‘facilitative provision’?

27      Awards have been described as containing ‘the commands, rules and injunctions of a public body authorised to impose upon non‑consenting parties a resolution of whatever dispute, issue or proceeding had been before it’: National Tertiary Education Union v La Trobe University [2015] FCAFC 142; (2015) 254 IR 238 per Jessup J at [30]. His Honour went on to say that there are good reasons to approach the reading of an award with a disposition towards finding a binding obligation or the establishment of a substantive entitlement, in each provision. While his Honour was in the minority in determining that a clause of an enterprise agreement was aspirational rather than prescriptive, his Honour’s reasons concerning the nature of an award and the approach to its construction accorded with the other members of the Full Court of the Federal Court of Australia.

28      And yet, particular provisions of an award may nevertheless lack obligatory content. Provisions may contain language of recognition, or definition, or may create choices, rather than obligations that are capable of being contravened: Bluescope Steel (AIS) Pty Ltd v Australian Workers’ Union [2019] FCAFC 84; (2019) 270 FCR 359 per Allsop CJ at [13]‑[17] and Collier J at [225]‑[235].

29      There is no barrier to the Commission making an award with provisions that provide options about how award obligations can be complied with in practice at a local level.

30      Award provisions that provide for local, workplace or enterprise‑level agreements about how award obligations are to be complied with were increasingly adopted from the early 1980s. Many current award provisions of this type have their origin in the introduction of the 38‑hour working week: Amalgamated Metal Workers and Shipwrights Union of Western Australia & Ors v Anchorage Butchers Pty Ltd & Ors (1982) 62 WAIG 827.

31      By the 1990s, the label ‘facilitative provision’ came into use to describe these types of provisions.

32      The CCH Macquarie Dictionary of Employment and Industrial Relations contains a definition of ‘facilitative provision’:

A provision built into an award in the context of the structural efficiency principle (see restructuring efficiency principle) which usually stipulates that the standard approach prescribed in that award provision may be departed from by agreement between an individual employer and an employee or the majority of employees in the pant or section concerned. “Facilitative clauses are designed to provide, against the background of the standard or basic award clause, scope for flexibility to meet the particular working or competence requirements within an establishment” according to the Full Bench of the Australian Industrial Relations Commission in the national wage case decision of April 1991…

33      The structural efficiency principle was a principle introduced by the Full Bench of the Australian Conciliation and Arbitration Commission in the March 1987 national wage case decision. The principle allowed differential wage increases in awards in response to changes at the enterprise or industry level, giving rise to increases in productivity.

34      The Macquarie definition above articulates the concept of a facilitative provision in substantially the same terms that the Australian Industrial Relations Commission (AIRC) did in the September 1994 Safety Net Adjustments and Review (1994) 56 IR 114 at pp 135‑136.

A “facilitative provision” is that part of an award clause which enables agreement at enterprise level to determine the manner in which that clause is applied at the enterprise. A facilitative provision normally provides that the standard approach in an award provision may be departed from by agreement between an individual employer and an employee or the majority of employees in the enterprise or part of the enterprise concerned. Where an award clause contains a facilitative provision it establishes both the standard award condition and the framework within which agreement can be reached as to how the particular clause should be applied in practice.

35      WASU’s counsel, Mr Cory Fogliani, pointed to peril in the way the AIRC articulated the definition. He said that reference to ‘departing from’ the ‘standard approach’ in an award amounted to breaching an award obligation, or sidestepping the award. However, this is not what the AIRC means by its reference to a ‘standard approach’. On p 137, the AIRC said:

The difference between facilitative provisions and enterprise flexibility clauses was emphasised by the Commission in its April 1991 National Wage Case decision. The Commission stated that facilitative provisions do not need to be processed through formal mechanisms as they:

“…are designed to provide against the background of the standard or basic award clause, scope for flexibility to meet the particular working or competence requirements within an establishment.”

In relation to enterprise flexibility (award modernisation) clauses, the Commission stated:

“…there seems to be a view that an award modernisation clause may be used to negotiate a variation to a standard or basic award provision without the need to seek a formal award variation. This would be tantamount to providing a built‑in contracting‑out provision in an award, which should not occur. While an award system is provided for under the statutory framework, the parties to a particular award should not, in our view, be entitled to divest themselves of their obligations under it. If another or both should wish to change those obligations, they should seek to do so in accordance with the processes provided by the Act. Clearly, the relevant union or unions have a role in that process.”

36      By disavowing the idea that an enterprise flexibility clause could have the effect of permitting contracting‑out of the award, the AIRC must have regarded facilitative clauses as having the same limitations. This extract also reveals that the AIRC’s reference to a ‘standard’ is to a default, normal or typical provision within a scope or range of options.

37      Facilitative provisions are not inherently or by nature a means to enable award obligations to be changed, varied or avoided. Indeed, if that is the effect of an award’s language or an award clause, it would not be a ‘facilitative provision’ as that phrase was described by the AIRC.

38      What emerges from the above is that true facilitative provisions do not step outside the limitations on the award‑making power as described in Ngala and the Full Bench in City of Cockburn. The scheme of the Act does not preclude the inclusion of facilitative provisions in an award, if they are facilitative provisions as defined above.

39      The history of variations to the Metal Trades (General) Award illustrates the distinction between a true facilitative provision and those that are tantamount to built‑in contracting out provisions. In Commission’s Own Motion v Dardanup Butchering Co & Ors [2004] WAIRC 12690; (2004) 84 WAIG 2739 (Dardanup Butchering) (Dardanup Butchering), the Commission in Court Session, constituted by Chief Commissioner Coleman, Senior Commissioner Beech and Commissioner Smith issued a statement about the meaning and effect of s 40B of the Act, with a view to future Commission’s Own Motion reviews of a number of awards, including the Metal Trades (General) Award.

40      The Chamber of Commerce and Industry of Western Australia (CCI) argued that ‘facilitative provisions’ could and should be inserted in awards under a s 40B review process. The type of provision that the CCI proposed would enable employers and employees to reach an agreement on matters that had ‘previously been outside the capacity of employers and employees to agree upon’, presumably because they were not already part of the awards. The matters that the CCI suggested be dealt with by facilitative provisions were the scope of ordinary hours of work, part time employment and other matters: [113].

41      The Commission in Court Session considered it had no power under s 40B(1)(e) of the Act to implement facilitative clauses of that kind: [197]‑[198]. It then cited Ngala, and the s 6(ad), (af) and (ag) objects of the Act, which it said at [201]‑[202]:

…reinforce the system of industrial relations whereby unions are essential parties to the award system and the making of agreements under the award system. Even if implementation of facilitative clauses of the kind contemplated by the Chamber could be said to be prima facie authorised by the provisions of the Act, this Commission would have to be satisfied that some mechanism could be put in place within the facilitative provision that ensured that the process was fair to relevant employees and industry, whilst facilitating efficiency.

As to whether the Chamber’s list of matters, such as the removal of limits on the ordinary hours of work should be dealt with under s.40B, the Commission in Court Session is of the view that if employers wish to pursue these issues they should do so by making an application under s.40 of the Act as it is the award parties who are in the best position to assess these issues as these are matters within the knowledge of the parties and persons who are bound by the provisions of an award.

42      Just over a year later, the Commission in Court session, slightly differently constituted (by Beech CC, Gregor SC and Smith C), proceeded on its own motion to consider variations to the Metal Trades (General) Award in APPL 555 of 2005: Commission’s Own Motion v Not applicable [2005] WAIRC 03121; (2007) 87 WAIG 898. The Commission said that the Statement issued in Dardanup Butchering ‘adequately expresses our view’ and in general terms, the variations which the Commission proposed making to the Metal Trades (General) Award were consistent with the Statement: [7].

43      The Commission in Court Session, reconvened on various dates through to October 2006, this time constituting Beech CC, Smith SC and Kenner C, to consider further variations to the Metal Trades (General) Award: Commission’s Own Motion v Not applicable [2007] WAIRC 00318; (2007) 87 WAIG 903. The award had existing facilitative provisions, introduced when the 38‑hour week was implemented in 1982, allowing for the spread of hours, roster system, notice of days off duty, and days off duty to be altered by agreement between the employer and a majority of employees or an employee. In dealing with the CCI’s submission that ‘more could, and should be done’, the Commission in Court Session said at [18]:

CLAUSE 13. – HOURS (now Subclause 3.1)

[18] This clause was drawn to our attention in the context of facilitative provisions.  The submission made by CCIWA was that more could, and should, be done in this regard.  We have previously noted however the decision of the Industrial Appeal Court in Ngala Family Resource Centre v. The Australian Liquor, Hospitality and Miscellaneous Workers Union, Miscellaneous Workers Division, Western Australian Division (1997) 77 WAIG 2551 and that we consider the ratio of that decision to be binding upon us in these circumstances (see paragraph [197] and following of the Commission’s statement in (Commission’s Own Motion v. Dardanup Butchering Co and Others) at (2004) 84 WAIG 2739).

44      The Commission in Court Session further said in relation to the existing provisions at [20]‑[21]:

[20] These provisions to which we have specifically referred have their genesis in amendments made, essentially by consent so far as these provisions are concerned, as part of the introduction of the 38 hour week into the award in 1982 (62 WAIG 827 at 831).  We consider it significant that these provisions were introduced essentially with the consent of the employers and the unions who are the named parties to the award.  We also find it significant that there is no submission before us that these provisions have been the cause of any industrial problems whatsoever since that time; neither are we aware from our own knowledge of the award and its operation of any industrial disputes arising from these provisions.

[21] We consider, in the circumstances of this award and its history, that these provisions are consistent with the facilitation of the efficient organisation and performance of work according to the needs of an industry and enterprises within it balanced with fairness to the employees in the industry and enterprises as contained within section 40B(1)(e) of the Act.  We propose to extend the provisions to the days of the week upon which ordinary hours are able to be worked.  We have therefore amended Clause 12(c) to provide that the provisions of the clause may be altered by agreement between the employer and the majority of employees in the plant, section or sections concerned. 

45      The Commission in Court Session also proposed inserting a facilitative provision to provide that the shiftwork provisions could be altered by agreement between the employer and the majority of employees in the plant, section or sections concerned: [24].

46      The Commission in Court Session’s statements at [197]‑[201] of Dardanup Butchering were not, therefore, directed at the permissibility or validity of the content of the provisions CCI had proposed. Rather, its concern was the process by which such clauses could be introduced into an award. In this context, the Commission in Court Session considered Ngala prevented it from introducing clauses under s 40B, absent an application for variation to which the union was party.

47      Further, in Dardanup Butchering, the Commission had said that s 40B(1) is mandatory, and that once the preconditions in subparagraph (a) to (e) for the exercise of the power are met, the power must be exercised by the Commission: [171]. It is notable, then, that in APPL 555 of 2005, proceedings conducted under s 40B, not only did the Commission not remove facilitative provisions from the Metal Trades (General) Award on the basis that they were invalid or impermissible, but it extended existing facilitative provisions on the basis it was satisfied that doing so was mandated by s 40B(1)(e). It did so, having expressly recognised that the Ngala principle, was binding on it.

48      This outcome is consistent with the facilitative provisions of the Metal Trades (General) Award permitting agreement on the method of applying the award’s obligations, not agreement to vary the award with the effect of varying its obligations.

Do the facilitative provisions of the LGO Award allow agreement to vary the award’s obligations?

49      The upshot of the above consideration is that, in order to determine whether the facilitative provisions are invalid and obsolete or not, I must decide whether the particular provisions have the effect of permitting agreements that have the effect of varying the award’s obligations.

50      Clause 8 itself is lengthy. Rather than set it out here, it is reproduced as a schedule to these reasons.

51      The sub‑heading to cl 8.1 uses the word ‘vary’. This sounds a warning alarm, given the Act’s limits on the ability to vary an award’s provisions. But, while regard may be had to the heading in construing an ambiguous provision, where the text of the provision itself is unambiguous, the heading must give way: Civil Service Association of Western Australia Inc v Director‑General, Department of Justice [2019] WAIRC 00713; (2019) 99 WAIG 1531 per Kenner SC at [23]. Clause 8.1’s text makes it clear that the facilitative provisions allow agreement about how specific award provisions are to apply in practice, and not to avoid award obligations by variation.

52      The question remains whether the facilitative provisions do in substance purport to permit variations to the award, with the effect of altering award obligations.

53      As the parties agreed, to answer the question of the validity of the facilitative provisions of the award, I must have regard to the clauses that are listed as being facilitative provisions as reproduced below. I must determine whether the provision itself involves a strict obligation, or whether it is about how award provisions apply in the workplace.

54      In considering each clause, I have not endeavoured to comprehensively construe them or reconcile any possible ambiguities in meaning, as such matters were not argued before me. Rather, I only broadly characterise the provision and its effect as either imposing an obligation, or dealing with how provisions are to be applied in practice.

Part‑time job sharing – Clause 10.1.2(3)

(3) By agreement an employer and employee may vary the agreed hours of work. In the event that an employer seeks to vary the agreed hours of work without the consent of the employee the appropriate notice as prescribed by 10.3.1 hereof shall be given. Provided, however, that the employer and the employee may agree to a lesser period of notice.

55      WASU did not argue that this provision was invalid. It is clearly a provision that concerns how specific award provisions are to apply in practice, and does not purport to allow an agreement to alter award obligations. It is the type of provision the Commission in Court Session approved in APPL 555 of 2005, and is permissible.

Payment of salaries – Clause 13.3.3

13.3.3 Salaries shall be paid into a bank account or any other account, nominated and available to the employee unless such form of payment is impractical. Nothing in this clause shall prevent an employer and an employee from adopting a mutually agreed alternative method of paying salaries each pay period.

56      The provisions of cl 13 concern the obligation to pay salary for the pay period. How the obligation is to be met is set out in cl 13.3.3, that is, by payment into a nominated bank account, or a mutually agreed alternative method. The clause does not purport to permit an alteration to the obligation to pay salary, but is about how that obligation is to be satisfied. This clause is permissible.

Annual Leave Loading – Clauses 13.6.5 & 24.1.3(2)

13.6.5 The annual leave loading specified in clause 24.1.3 may be incorporated into the salary package.

24.1.3(2) By agreement between the employer and an employee, the loading may be cash out and included as a component in the employee’s salary.

57      Clause 24.1.3 provides that a loading of 17.5% or the appropriate shift loading is payable ‘during a period of annual leave’. This is the relevant obligation.

58      Clauses 13.6.5 and 24.1.3(2) deal with how the obligation to pay the loading is to be applied, or can be satisfied. One option is payment during the leave. The other is incorporation into the salary. Both means satisfy the obligation to pay leave loading. These clauses are permissible.

Additional Weeks Leave – Clause 13.6.6

13.6.6 The additional weeks leave specified in clause 24.1.4(1) for Chief Executive Officers, Town or Shire Engineer or Environmental Health Officers may be incorporated into the salary package.

59      This clause provides an optional method by which the obligation to allow an additional weeks’ paid leave can be satisfied. One method is for the leave to be taken. The other is incorporation of the equivalent pay into the salary. Both methods satisfy the obligation. The clause is permissible.

Salary Sacrifice – Clause 13.7

Where agreed in writing between the employer and an employee, an employer may introduce remuneration packaging by way of salary sacrifice (including any negotiated salary allowable) and the terms and conditions of such a package shall not, when viewed objectively, be less favourable than the entitlements otherwise available under this award. The employer shall ensure that the structure of any agreed package complies with taxation and other relevant laws. Where an employer has adopted a policy providing a salary sacrifice option to employees, it shall advise new employees to whom this policy applies of their right to seek to negotiate a remuneration package through salary sacrifice.

60      This clause contains potential ambiguities. Still, the last sentence indicates its broad intention is to confer on employees the ‘right’ to negotiate salary sacrificing arrangements. In other words, it is intended to give employees the benefit of having their remuneration paid in ways other than by wages, perhaps via superannuation contributions, or a motor vehicle in lieu of wages. It is something short of an entitlement and also short of an obligation. Perhaps it merely creates the opportunity for a new entitlement. In any event, it is not impermissible. It does not have the effect of avoiding any particular award obligation.

Spread of Hours – Clauses 19.1.1 & 19.6

19.1.1 Except as hereinafter provided, the average maximum 38 ordinary hours will be worked by mutual agreement, Monday to Friday between the hours of 7:30 a.m. and 6:00 p.m. with a minimum break of 30 minutes for lunch which shall be allowed no longer than five hours after commencement. The starting time may be 7:00 a.m. where agreed between the employer and the employee.

19.6 Computer Operations/Information Technology Officers

Notwithstanding the provisions of 19.1.2 hereof, the ordinary hours of duty of Officers engaged in Computer Operations shall not exceed an average of 38 per week to be worked between the hours of 7:30 a.m. and 6:00 p.m., Monday to Friday (start times may be 7:00 a.m. where there is agreement between the employer and employee) and 7:30 a.m. to 12:00 noon Saturday, and within a daily spread of ten hours with the provision of a meal break of not less than 30 minutes within that spread of hours.

61      These clauses establish two possible starting times for the spread of ordinary hours: 7.30 am and 7.00 am. The default start time is 7.30 am unless there is agreement between the employer and the employee. Both starting times are consistent with the award’s terms.

62      These clauses deal with the method of implementing award obligations. They do not have the effect of permitting an agreement to vary the award’s obligations and so are permissible.

Extended Work cycles/Hours of work – Clause 19.1.2

19.1.2 The average hours of work will not exceed 38 hours per week to be worked on one of the following bases:

(1) 38 hours over seven consecutive days or

(2) 76 hours over fourteen consecutive days; or

(3) 114 hours over 21 consecutive days; or

(4) 152 hours over 28 consecutive days; or

(5) such further extended cycles as agreed between employer and employees which produces an average 38 hours per week.

63      Clause 19.1.1 establishes the ordinary hours of work are 38 hours per week. This is a matter that is fundamental to the employment relationship. Various other award obligations are dependent on the ordinary hours of work.

64      Clause 19.1.2 then deals with how the 38 ordinary hours are to be worked, or, how averaging may be used to meet the obligation to adhere to a 38 ordinary hour week.

65      The clause deals with the method by which the obligation to adhere to a 38‑hour week can be applied or satisfied. The effect of an agreement to an extended cycle for the purpose of averaging hours does not have the effect of altering the ordinary hours or departing from a 38‑hour week.

66      However, such an agreement may alter the effect of other award obligations, particularly, the obligation to pay overtime for hours worked in excess of ordinary hours.

67      I note that a similar provision was allowed by the Full Bench in APPL 555 of 2005 concerning the Metal Trades (General) Award, and which survives as cl 3.1.2 of that award: see Commission’s Own Motion v Not applicable [2007] WAIRC 00318; (2007) 87 WAIG 903 at [19]‑[21]. However, cl 3.1.2 of the Metal Trades (General) Award relates only to continuous shift work employees, and in the context of various other terms and conditions for shift workers such that extending the work cycle has limited or no impact on other award obligations. This clause is therefore distinguishable from that which the Full Bench considered in APPL 555 of 2005.

68      Clause 19.1.2(5) is invalid.

Alternative Working Arrangements – Clause 19.10

Notwithstanding the above provisions, the employer and employee(s) may agree to an alternative arrangement of how working hours may be worked. Where the agreement affects more than one employee, the majority of employees affected must genuinely agree to the change. All agreements shall be in writing, indicating the employees affected and the terms of the agreement. In the case of employees covered by 19.1.2, the penalties prescribed in clause 20.1 shall apply where applicable.

69      This clause is rife with potential constructional issues and ambiguity. I have not had the benefit of argument or submissions about the clause’s scope of application or correct meaning.

70      I note however that the express text of the provision indicates that it is about how terms of the award will be applied, that is, how ‘working hours may be worked’. It does not refer to ordinary hours of duty, spread of hours, meal breaks or breaks between shifts. Reading the clause in the context of cl 8.1.2 which disallows the use of facilitative clauses as a device to avoid award obligations, leads me to the provisional view that cl 19.10 does no more than say that an employer and an individual employee may agree to alternative arrangements that are consistent with the award’s obligations. For example, an employer and employee may agree that ordinary hours be worked over a 9‑day fortnight. A 9‑day fortnight is permissible, but not required, under cl 19.1.2(2).

71      On my provisional, narrow construction of cl 19.10, it is valid and permissible.

Display of Roster – Clauses 19.11, 21.8 & 22.3.1(4)

19.11 Where Officers are employed on a roster, such roster shall be prominently displayed at the place of work in a position accessible to the Officers concerned. Officers shall be provided with at least 72 hours' notice of any change in roster provided a lesser period can be agreed between the employee and employer.

21.8 A shift work roster shall be prominently displayed at the place of work in a position accessible to the Officers concerned. Officers shall be provided with at least 72 hours' notice of any change in roster provided a lesser period can be agreed between the employer and employee.

22.3.1(4) Where Officers are required to carry out rostered overtime, such rosters shall be displayed at the place of work in a position accessible to the Officer concerned. Officers shall be provided with at least 72 hours' notice of any change in the roster. Provided a lesser period of notice can be agreed between the employee and employer.

72      These clauses contain an obligation to display work rosters. They also, implicitly, enable the employer to make changes to the roster, provided a minimum period of notice is given. The other side of the coin is that the employer is obliged not to change the roster if the required notice is not given.

73      That this obligation exists does not prohibit an individual employee from agreeing to a roster change with lesser notice. Nor does it prohibit an individual employee from requesting a roster change and an employer agreeing to the employee’s request. Neither situation creates a breach of the employer’s obligation not to change the roster, because such change is effected by agreement, not by the employer.

74      Properly categorised, the agreements these clauses contemplate do not have the effect of altering an award obligation.

75      These clauses are permissible.

Shift workers time in lieu for public holidays – Clause 21.7

21.7 A continuous shift employee who is not required to work on a holiday which falls on his/her rostered day off shall be allowed a day's leave with pay to be added to annual leave or taken at some other time if the employee so agrees.

76      Here, the obligation is to allow a continuous shift employee a day’s leave in lieu if their rostered day off coincides with a holiday. The obligation can be met in one of two ways: first by adding the day to annual leave, or second, by allowing the leave to be taken at a time that the employee agrees to. The agreement does not have the effect of altering the obligation. The agreement is about the method of satisfying it.

77      The clause is permissible.

Time in lieu‑ cl 22.4.1

By agreement between the local authority and the Officer concerned, time off during ordinary hours shall be granted instead of payment of overtime due under this clause. Such time off shall be equivalent to the amount of overtime worked multiplied by the appropriate penalty rate and may be added to annual leave or taken at a mutually convenient time.

(1) If accumulated time‑in‑lieu is not taken within a period of twelve months, the employer may elect to pay out the employee at the appropriate penalty rate and at the rate for the classification in which the employee worked the overtime.

78      WASU did not argue this provision was invalid. Properly categorised, it does not permit agreement that has the effect of altering any award obligation. Rather it provides alternative means to satisfy the obligation to compensate employees for working overtime. It is a common provision in industrial instruments.

Ten hour break – cl 22.5

An Officer who works so much overtime between the termination of his/her ordinary work on one day and the commencement of his/her ordinary work on the next day that he/she has not had at least ten consecutive hours off duty between those times shall be released after the completion of such overtime until he/she has had ten hours off duty without loss of pay for ordinary working time occurring during such absence, provided that a lesser period than ten hours may be agreed between the employer and the employee.

79      This provision creates an obligation to release an employee from the requirement for the employee to commence ordinary work hours, without loss of pay, until the employee has had 10 consecutive hours off duty. An employer must not require an employee to work before they have had 10 consecutive hours off duty.

80      This obligation does not prohibit an individual employee from voluntarily recommencing duties before having 10 hours off duty. But, to do so, voluntarily, the employer must also agree to permit it. If both the employer and the employee agree, the effect is not the avoidance of an award obligation because the employer has not required the employee to resume work. The resumption is because the employee voluntarily resumes work. This clause is therefore permissible.

Agreed allowance in lieu of overtime – Clause 22.7

Notwithstanding the provisions of this clause the employee and employer may enter into a written mutual agreement in respect of the payment of an allowance in lieu of overtime penalties, provided that the value of the agreement is maintained compared with the primary provisions of this clause.

81      This provision relates to the obligation contained in cl 22 to pay overtime penalty rates for hours worked in excess of, or outside of, ordinary hours.

82      The agreement that the clause purports to permit is one that would clearly have the effect of altering the obligations imposed by cl 22. Any such agreement would be void.

Taking of leave – Clause 24.5

24.5.2 In special circumstances, and with the consent of the employer, an employee may defer the taking of any accrued annual leave, or any part thereof not taken, for a period not exceeding three years after the date when the leave accrued due.

83      The WASU contends the agreement referred to in this clause can have the effect of altering an award obligation. I disagree. It appears clearly on its face to deal with the manner in which the award entitlement, namely annual leave, is to be satisfied, rather than how the entitlement to annual leave can be avoided.

84      In any event, this clause must be read with s 25 of the Minimum Conditions of Employment Act 1993 (WA) (MCEA), which is taken to be implied in the award: s 5. Section 25(1) of the MCEA provides:

Where an employer and an employee have not agreed when the employee is to take annual leave, subject to subsection (2), the employer is not to refuse the employee taking, at any time suitable to the employee, any period of annual leave the entitlement to which accrued more than 12 months before that time.

85      In other words, if an employee has annual leave that accrued less than 12 months prior, that leave can only be taken at a time agreed between the employee and the employer. Once the leave has accrued and been due for 12 months, the employer cannot refuse an employee’s request to take leave at a time suitable to the employee.

86      Clause 24.5.2 therefore appears to have no practical scope to operate. I will hear from the parties as to whether this means the clause is obsolete and should be removed, for reasons other than those advanced at the hearing, namely inconsistency with the MCEA.

Substitution of public holidays – Clause 28.4.1

An employer and its employees may agree to substitute another day for any prescribed in this clause. For this purpose, the consent of the majority of affected employees shall constitute agreement. Any such agreement shall be recorded in writing and be available to every affected employee.

87      Clause 28.1 obliges an employer to allow employees to take holidays on the days listed in the clause. Clause 28 lists three circumstances where a day other than the listed public holiday can be substituted, in satisfaction of the obligation in cl 28.1, including, in cl 28.4.1, by agreement to substitute another day for any prescribed in cl 28.

88      Properly categorised, cl 28.1 concerns the method by which the obligation in cl 28 can be satisfied. The clause itself sets out a number of options for satisfying the obligation to allow employees to have a day’s holiday without loss of pay.

89      I note that there is a conflict between cl 28.4.1 and cl 8.3. Clause 28 requires any substitution to be by majority agreement, whereas cl 8.3 permits the substitution by an agreement between the employer and an individual employee. I do not need to resolve that conflict, nor determine how substitution occurs. In either case, I consider the clause does no more than provide for an alternative method for applying the award obligation, even if the method is unclear.

90      This clause is permissible.

If the facilitative provisions are valid and permissible, are they obsolete?

91      WASU relied upon the evidence of Mr Michael Fitz Gerald to show that the facilitative provisions of the LGO Award are not used. WASU says this means they are obsolete and should be removed, even if they are valid.

92      Mr Fitz Gerald has more than 30 years working with local government employers, providing industrial relations and strategic management services. He currently advises and represents 11 regional and rural local governments in Western Australia through his consultancy business, Fitz Gerald Strategies.

93      One of the services Mr Fitz Gerald’s business provides to local governments is advice about award interpretation. He was asked what his experience was of the use of cl 8 of the LGO Award. He said that when this clause was first introduced, I assume in the 1999 federal award, the opportunities created by cls 7 and 8 were promoted to local governments. However, he noted that the hours of work clauses had ‘fantastic flexibility’ even without having to resort to enterprise agreements or facilitative provisions.

94      He told the Commission that he had never been approached for advice from a client about how to apply the facilitative provisions of the LGO Award, nor was he aware of any clients that had used them.

95      Ms Davina Hunter, WALGA’s Employee Relations Service Manager, gave evidence on behalf of WALGA. Her evidence, which was high‑level and generalised, was relied on by WALGA to show that the facilitative provisions of the LGO Award remained relevant and were relied upon by at least some local government employers and their employees.

96      Ms Hunter said she was aware of WALGA providing advice about matters such as incorporating leave loading into an annual salary, salary packaging, starting and finishing times and roster cycles. It was unclear whether this advice was given in the context of the LGO Award’s facilitative provisions. She did say that she was aware of local governments that have agreements with employees to incorporate annual leave loading into their salary package, and was aware of local governments applying cl 22.4.1 of the LGO Award regarding time in lieu (this clause is not one that WASU says is invalid). Her evidence in this regard was not based on her first‑hand experience, but from her review of notes of conversations that her colleagues had had with local government members. She could not say which local government or local governments had made these arrangements. The notes themselves were not produced to the Commission.

97      In cross‑examination, Ms Hunter conceded that around 20 local governments apply the LGO Award and Municipal Employees (Western Australia) Award 2021, while the balance have either registered industrial agreements or State instruments made under the Fair Work Act 2009 (Cth) and registered under s 80BB of the Act. Of the 20 that apply the LGO Award, more than five subscribe to WALGA’s industrial relations advice service, but most do not.

98      The overall impression from the evidence, and taking into account the generalised and indirect nature of Ms Hunter’s evidence, is that the facilitative provisions of the LGO Award are rarely if ever used. At most, less than a small handful of local governments have an interest in a few of the facilitative provisions of the LGO Award.

99      Relying on Jones v Dunkel [1959] HCA 8, WASU say I should infer from the absence of direct evidence of the application of the provisions, that they simply are not being used and have not been used by anyone, anywhere.

100   I am unwilling to draw that inference. WALGA’s knowledge of the application of the facilitative provisions could only come from WALGA’s local government members. WALGA does not know what its members have not told WALGA. Neither WALGA nor Mr Fitz Gerald can give evidence that no local governments apply the facilitative provisions. They can only state that no local governments have sought advice from them about, or disclosed to them that they use, the facilitative provisions.

101   But in any event, I would not be inclined to remove facilitative provisions based only on evidence of their disuse or rare use. In Dardanup Butchering, the Commission in Court Session provided some guidance on the kind of situations where a provision will be considered obsolete, justifying its removal or amendment under s 40B(1)(d):

(a) where clauses are inconsistent with the MCEA or other applicable legislation: [188];

(b) where there are technological changes, changes in community standards or changes in the systems for the provision of services or goods in an industry: [209];

(c) to update references to out‑of‑date legislation, codes, definitions, policies and no deduction clauses: [193];

(d) to correct spelling and typographical errors, remove gender‑neutral language, remove or explain jargon or legalese and change references in awards from de facto spouse to de facto partner: [196]; and

(e) to implement the Registrar’s Standard Arrangement clause: [213].

102   I doubt that rare use or disuse of a clause, on its own, justifies removal of a provision. The Commission in Court Session declined to remove a Board of Reference Clause in the Metal Trades (General) Award on the basis it was rarely used: Commission's Own Motion v Not applicable [2005] WAIRC03121; (2007) 87 WAIG 898 at [35].

103   Further, it cannot be the intended effect of s 40B(1)(d) that conditions, protections or entitlements be removed merely on the basis of evidence of disuse. For example, it might be shown that there has not been a recent instance of an employee covered by the Metal Trades (General) Award being entitled to a location allowance for working in Mundrabilla. Leaving aside the question of what period of time without use would demonstrate disuse, this would not justify removing the Mundrabilla location allowance.

104   Obviously, too, the fact that a provision in an award has a long history, originated in a different legislative environment, or under a different industrial relations system, does not mean it is obsolete. These are features of many award terms and conditions.

105   The most compelling reason against concluding that the LGO Award’s facilitative provisions are obsolete is the fact that the parties to the LGO Award agreed to include them in the award in 2021. The award is not one that was imposed by the Commission on the parties in a different era. It was made on WASU’s application made in 2020, and with the consent of the employer parties. This tells me that the parties considered the facilitative provisions might be used and might be relevant. WASU did not establish that anything had changed to make the provisions obsolete since the award was made in 2021.

106   I also consider the fact that local governments and WASU have made industrial agreements under s 41 of the Act, which contain facilitative provisions similar to those in the LGO Award, is indicative of their contemporary relevance. In this respect, WALGA identified the following agreements registered since 2020 as having provisions embedded in a clause that permits an individual employee or a group of employees to agree on a method of applying award obligations in the alternative to the default provisions:

(a) City of Kalamunda Operational Workforce Agreement 2021;

(b) City of Kalamunda Salaried Workforce Agreement 2022;

(c) Shire of Murray (Administration Staff) Enterprise Bargaining Agreement 2020;

(d) Shire of Murray (Outside Workforce) Enterprise Bargaining Agreement 2020;

(e) Shire of Kondinin Municipal Collective Enterprise Agreement 2020;

(f) Shire of Narembeen Works Staff Enterprise Bargaining Agreement 2021; and

(g) Town of Cambridge Employees’ Collective Agreement 2022.

107   The fact that unions and employers in the local government sector have made agreements in recent times that provide for matters such as time off in lieu of overtime, substitution of public holidays, alternative ordinary hours of work, and salary packaging by agreement is a strong indication that such facilitative provisions are not outdated or obsolete.

Disposition and orders

108   In light of the above reasons, the LGO Award should be varied by deleting cl 7 Enterprise Flexibility.

109   As for cl 8, it should be varied to remove references to the clauses which I have concluded are invalid, namely cl 19.1.2(5) and cl 22.7. The variations would be by the deletion of the words ‘Extended work cycles/hours of work’, ‘19.1.2’, ‘Agreed allowance in lieu of overtime’ and ‘22.7’, where they are referred to in cl 8.2.1.

110   I would also vary the award by deleting cl 19.1.2(5) and cl 22.7.

111   I will hear from the parties in relation to these proposed variations, as well as in relation to any proposed variations concerning the facilitative provision in cl 24.5.2.

Schedule

8. ‑ FACILITATIVE PROVISIONS

8.1 Agreement to vary award provisions

8.1.1 This award contains facilitative provisions which allow agreement between an employer and employees on how specific award provisions are to apply at the workplace or section or sections of it.  The facilitative provisions are identified in 8.2, 8.3 and 8.4.

8.1.2 The specific award provisions establish both the standard award condition and the framework within which agreement can be reached as to how the particular provisions should be applied in practice.  Facilitative provisions are not to be used as a device to avoid award obligations nor should they result in unfairness to an employee or employees covered by this award.

8.2 By individual agreement

8.2.1 The following facilitative provisions can be utilised upon agreement between an employer and an employee provided that the agreement complies with 8.2.2 and 8.2.3:

The agreement reached must be recorded in the time and wage record kept by the employer.

8.2.2 If an employee is a member of a Union bound by the award, the employee may be represented by the Union in meeting and conferring with the employer about the implementation of the facilitative provisions.

8.2.3 The Union must be given a reasonable opportunity to participate in negotiations regarding the proposed implementation of a facilitative provision.  Union involvement does not mean that the consent of the Union is required prior to the introduction of agreed facilitative arrangements.

8.3 Facilitation by majority or individual agreement

8.3.1 Subject to 8.3.2 and 8.3.3, the following facilitative provisions can be utilised upon agreement between the employer and the majority of employees in the workplace or a section or sections of it or, the employer and an individual employee.

8.3.2 Majority agreement

Where agreement has been reached with the majority of employees in the workplace or a section or sections of it to implement a facilitative provision in 8.3 the employer may not implement that agreement unless:

(1) it complies with 8.2.1, 8.2.2 and where specified in 8.5; or

(2) agreement has been reached with each individual employee to be covered by the facilitative provision.

8.3.3 Individual agreement

Where no agreement has been sought by the employer with the majority of employees in accordance with 8.3.2, the employer may seek to reach agreement with individual employees in the workplace, and such agreement will be binding on individual employees provided it complies with 8.2.1 and 8.2.2 and provided that the agreement is only with an individual employee or a number of individuals less than the majority in the workplace or a section or sections of it.

8.4 Facilitation by majority agreement

8.4.1 The following facilitative provisions may only be utilised upon agreement between the employer and the majority of employees in the workplace or a section or sections of it.

Where agreement has been reached with the majority of employees in the workplace, or a section or sections of it, to implement a facilitative provision in 8.4.1, that agreement shall be binding on all such employees, provided the requirements of 8.2.1 and 8.2.2 and where specified in 8.5 have been met.

8.4.2 Additional safeguard

(1) An additional safeguard applies to:

(2) The additional safeguard requires that the Unions which are party to the award and which have members employed at an enterprise covered by the award shall be informed by the employer of the intention to use the facilitative provision and shall be given a reasonable opportunity to participate in the negotiations regarding its use.  Union involvement in this process does not mean that the consent of the Union is required prior to the introduction of agreed facilitative arrangements at the enterprise.

8.5 Majority vote at the initiation of the employer

A vote of employees in the workplace, or a section or sections of it, taken in accordance with 8.3 or 8.4, to determine if there is majority employee support for implementation of a facilitative provision, will be of no effect, unless taken with the agreement of the employer.

8.6 Dispute over facilitation

In the event that a dispute or difficulty arises over the implementation or continued operation of a facilitative provision, the matter will be handled in accordance with the dispute resolution procedure in Clause 9. - Disputes Settlement Procedure.