Australian Nursing and Midwifery Federation

[2020] FWC 549

[2020] FWC 549

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Australian Nursing and Midwifery Federation
(AG2019/4770)

DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 4 FEBRUARY 2020

Application for an extension of time to file the application for approval of the Kalyra Communities Enterprise Agreement 2019.

Introduction

[1] This decision concerns an application by the Australian Nursing and Midwifery Federation (ANMF) for an extension of time to file its application for approval of the Kalyra Communities Enterprise Agreement 2019 (Agreement). The ANMF is a bargaining representative for the Agreement.

[2] Ordinarily an application for approval of an enterprise agreement must be made within 14 days after the agreement is made. However, the Fair Work Commission (Commission) has a discretion under section 185(3)(b) of the Fair Work Act 2009 (Act) to extend the period beyond 14 days if in all the circumstances the Commission considers it fair to do so.

[3] According to the F17 statutory declaration, the Agreement was made on 24 October 2019 when a majority of employees eligible to vote on the Agreement cast a vote to approve the Agreement. On about 31 October 2019, the employer covered by the Agreement (Kalyra) filed an application in the Commission for approval of the Agreement (First Application). The First Application was assigned to my chambers.

[4] On 25 November 2019, my Associate wrote to Kalyra in relation to a number of better off overall (BOOT) concerns pertaining to the Agreement. On 6 December 2019, Kalyra wrote to the ANMF advising that it had decided to discontinue the First Application. That decision was made prior to any discussion between Kalyra and its bargaining committee or workforce generally.

[5] On the morning of 9 December 2019, the ANMF put Kalyra on notice of its objection to the discontinuance of the First Application and sought a meeting with Kalyra. A telephone conference took place later that day involving representatives from Kalyra and the ANMF. Kalyra indicated to the ANMF that it maintained its decision to withdraw the First Application.

[6] At 4:50pm on 9 December 2019, Kalyra informed my chambers, in writing, of its decision to withdraw the First Application. At 5:43pm on 9 December 2019, the ANMF informed my chambers, in writing, of its objection to Kalyra’s withdrawal of the First Application and its intention to file its own application for approval of the Agreement. On 10 December 2019, my chambers confirmed that Kalyra’s withdrawal of the First Application had been effective and the First Application was discontinued.

[7] At 6:15pm on 9 December 2019, the ANMF filed its own application for approval of the Agreement (Second Application). The Second Application was filed 46 days after the Agreement was made. 1 It was therefore lodged 32 days’ late.

[8] On 20 December 2019, my Associate wrote to Kalyra in relation to a number of BOOT concerns pertaining to the Agreement and the out of time issue in relation to the Second Application.

[9] Substantive correspondence has been exchanged between the ANMF and Kalyra in January 2020 concerning the Second Application. On 20 January 2020, the ANMF provided a response to the BOOT and out of time issues raised in the Commission’s correspondence dated 20 December 2019, including undertakings which the ANMF says Kalyra has indicated a preparedness to give or may give.

[10] On 21 January 2020, Kalyra informed my chambers, in writing, that it withdrew the First Application because it was not able to address all the BOOT issues raised by the Commission in relation to the Agreement and its position had not changed. Kalyra submits that another bargaining representative for the Agreement, the United Workers’ Union, has accepted its position to withdraw the First Application. Kalyra also submits that since the withdrawal of the First Application, it has undertaken with its employees to implement the benefits that would have formed part of the Agreement, if it had been approved, as “over-agreement benefits on top of the existing expired EA”.

[11] Kalyra accepts that it has, in good faith, provided information and feedback to the ANMF in relation to the BOOT issues raised by the Commission in relation to the Agreement, but the response and proposed undertakings provided by the ANMF to the Commission on 20 January 2020 were provided by the ANMF only and not jointly with, or on behalf of, Kalyra.

[12] Kalyra submits that its position in relation to giving undertakings to satisfy the Commission’s BOOT concerns has not changed. Kalyra is not in a position to agree to anything that creates significant additional cost or administrative burden without revisiting the other benefits that Kalyra has already passed on to its employees.

[13] Kalyra submits that the Second Application has no merit and is bound to fail on the basis that the undertakings requested (as they relate to Kalyra) cannot and will not be provided by Kalyra. In all the circumstances, Kalyra submits that it is not fair to extend the time for the Second Application to be lodged and it should be dismissed.

Consideration

[14] I have read and given consideration to all the submissions and supporting documents relied on by Kalyra and the ANMF in relation to the out of time question.

[15] I accept that the merits of the Application is a relevant consideration to the exercise of discretion under s 180(3)(b) of the Act, as are a range of other factors such as the length of the delay and the reasons for it.

[16] The merits of the Application weigh against granting an extension of time to lodge the Second Application. I have raised a number of significant BOOT concerns in relation to the Agreement. Kalyra has made it clear that it is not in a position to provide undertakings to address a number of those concerns, although it has indicated a preparedness to address certain matters. In those circumstances, the likelihood of the Agreement being approved is relatively low, but it is not hopeless or without any prospect of success. A number of factors must be appropriately weighed when making a value judgment as to whether employees will be better off under the Agreement, together with any undertakings which are provided, as compared with the relevant award(s). To date, there has not been a conference or hearing before the Commission in relation to the BOOT concerns raised by the Commission with the parties. It is possible that the Commission’s BOOT concerns may be able to be overcome in such a forum.

[17] The reason for the delay weighs in favour of the granting of an extension of time. In particular, the First Application was made within time. As soon as the ANMF became aware that the First Application was to be discontinued, the ANMF took immediate steps, on the same day as the discontinuance (9 December 2019), to file the Second Application. The ANMF could not have moved any quicker than it did. It would have been premature and inappropriate for the ANMF to file its own application for approval of the Agreement prior to being put on notice that Kalyra intended to discontinue the First Application. It follows that although the overall period of delay is reasonably lengthy (32 days), the ANMF was responsible for less than one day of that period and it acted without delay in filing the Second Application as soon as there was a basis for it to do so.

[18] Also weighing in favour of granting an extension is the position of the employees covered by the Agreement. A valid majority of them voted to approve the Agreement. If the application for an extension of time is refused, an enterprise agreement which has passed its nominal expiry date will continue to apply to the employees covered by the Agreement. Although employees covered by the Agreement will also enjoy such other “over-agreement benefits” as are provided by Kalyra, they cannot enforce those benefits as a term of the Agreement.

[19] Having regard to all the circumstances, I consider it fair to exercise my discretion under s 185(3)(b) of the Act to extend the time for the Second Application to be made until 9 December 2019. An order [PR716375] to that effect will be issued shortly.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR716374>

 1   Not including the day the Application was made (24 October 2019)