ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application to Commission to deal with dispute under Moreland City Council Enterprise Agreement 2015 (‘Agreement’) – dispute concerned decision of respondent to contract out waste collection services – clause 6.2 of Agreement stated parties ‘will strive to maintain, and expand’ the current skills mix and staffing levels – applicant sought orders that respondent: not execute contract of services with contractor, confer with applicant under Agreement and make arrangements for procurement of in-house bid – applicant submitted relevant question to be answered was whether respondent would fail to comply with Agreement if it were to contract with an external contractor – respondent had previously outsourced to external contractor – respondent called for tenders to provide services after expiry of the current contract – no inhouse bid or tender was submitted – respondent raised jurisdictional objection that dispute settlement procedure in Agreement limited to ‘matter arising under agreement’ or NES – Commission satisfied appropriate nexus between awarding contract for delivery of services and clause 6.2 in Agreement – applicant submitted clause 6.2 placed positive obligation on respondent – respondent submitted clause 6.2 only dealt with potential job losses where services were currently provided inhouse – respondent submitted clause 6.2 ‘strive to maintain’ aspirational only – Commission satisfied clause is ambiguous and susceptible to more than one meaning – Commission satisfied clause 6.2 places clear positive obligation on respondent and not aspirational only – Commission found time of contract renewal was entirely appropriate time to consider obligation imposed by clause 6.2 and how or if it could be met – Commission observed obligation may be met by engaging parties in processes that precede recommendations to further contract out the work – Commission found respondent has obligation to not prematurely close off options for the meeting of the obligation – Commission found respondent would fail to comply with Agreement if it were to contract with an external contractor – Commission not satisfied has powers to issue a declaration or orders sought by applicant – Commission issued declaration that respondent engage with other parties with view of giving effect to clause 6.2 – declared respondent make arrangements for procurement of an in-house proposal or bid for provision by respondent employees – application adjourned. Australian Municipal, Administrative, Clerical and Services Union v Moreland City Council
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