Better Read Pty Limited T/A Better Read Than Dead - [2022] FWC 886

[2022] FWC 886

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Better Read Pty Limited T/A Better Read Than Dead

(AG2022/131)

DEPUTY PRESIDENT EASTON

SYDNEY, 14 APRIL 2022

Application for approval of The Better Read Than Dead Enterprise Agreement 2021 – requirement to ensure the terms of the agreement are explained to relevant employees – task left to bargaining representatives – application refused.

Better Read Pty Limited t/a Better Read Than Dead (the Employer/Better Read) has applied for the approval of The Better Read Than Dead Enterprise Agreement 2021 (the Agreement). From June 2021 to December 2021 Better Read and the Retail and Fast Food Workers’ Union Incorporated (RAFFWU), as the bargaining representative for a some of Better Read’s employees, were in discussions to finalise the terms and wording of the Agreement.

With the assistance of the Fair Work Commission (FWC) the parties seemed to reach an agreement in early December 2021.

On or around 5 December 2021 Ms Kate Colley was appointed the bargaining representative for a number of employees not represented by RAFFWU.

On 6 December 2021 Better Read sent a draft copy of the proposed Agreement to RAFFWU. In an email exchange on the same day Better Read indicated to RAFFWU that it was prepared to make an agreement in the terms sent, but foreshadowed the possibility of other amendments that might be proposed by the new bargaining representative, Ms Colley.

In the evening of 6 December 2021 the employees represented by RAFFWU met and agreed to make an agreement in the terms proposed.

On 7 December 2021 employer representatives met with Ms Colley, provided the same draft to her and explain the terms of the Agreement.

Ms Colley then met with those whom she represented and on 9 December 2021 Ms Colley advised Better Read that those employees also voted to approve the agreement.

On 10 December 2021 the final version of the Agreement was sent to RAFFWU, which resulted in the cessation of protected industrial action by employees.

On 15 December 2021 Vero Engagement and Voting Solutions Pty Ltd, an independent voting service, contacted all employees via email and SMS to advise about the voting process and the date and time of the voting period, and provided a user guide on how to vote.

On 17 December 2021 a copy of the Agreement was sent to all employees.

The voting period commenced on 3 January 2022 and closed on 5 January 2022.

23 employees were covered by the proposed agreement at the time of the vote. 18 employees voted and all of those employees voted to approve the Agreement.

Better Read then applied to the FWC for approval of the Agreement.

RAFFWU now submits that the Agreement cannot be approved because Better Read did not meet its statutory duty under s.180(5) and (6) of the Fair Work Act 2009 (Cth) (the Act).

The FWC can only approve an Agreement if it is satisfied…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Better Read Pty Limited T/A Better Read Than Dead and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] FWC 886
Decision Date

CaseChat Overview and Summary

Better Read Pty Limited, trading as Better Read Than Dead, applied to the Fair Work Commission for approval of an enterprise agreement. The application was contested by the Retail and Fast Food Workers’ Union Incorporated (RAFFWU), which claimed that the employer had failed to comply with its statutory obligations under the Fair Work Act 2009 to ensure that the terms of the agreement were explained to the relevant employees. The dispute centred on whether the employer had taken all reasonable steps to ensure that the terms of the agreement were explained to employees, particularly in light of the employer's reliance on the bargaining representatives to provide this information.

The legal issue before the Commission was whether Better Read had complied with section 180(5) of the Fair Work Act, which requires the employer to take all reasonable steps to explain the terms of the agreement to relevant employees. The Commission considered whether the employer's reliance on bargaining representatives to explain the agreement terms to employees was sufficient to meet the statutory requirement and whether it was reasonable in the circumstances.

The Commission found that the employer had not taken all reasonable steps to ensure that the terms of the agreement were explained to the relevant employees. The employer relied on the bargaining representatives, including RAFFWU and Ms Colley, to explain the terms of the agreement to employees, but failed to provide any evidence of the explanations that were actually provided. The Commission held that the requirements of section 180(5) could not be delegated to bargaining representatives and that the employer had an obligation to ensure that the terms were explained to employees. As the employer had not provided any evidence of the explanations provided, the Commission could not be satisfied that all reasonable steps had been taken to comply with section 180(5). Consequently, the Commission could not be satisfied that the agreement had been genuinely agreed to and dismissed the application for approval.

The Fair Work Commission dismissed Better Read Pty Limited's application for approval of the enterprise agreement. The Commission found that the employer had not taken all reasonable steps to ensure that the terms of the agreement were explained to relevant employees, as required by section 180(5) of the Fair Work Act. The employer's reliance on bargaining representatives to provide the explanations did not satisfy the statutory obligation, and the Commission could not be satisfied that the agreement had been genuinely agreed to.

Orders