[2017] FWC 1818 [Note: An appeal pursuant to s.604 (C2017/2070) was lodged against this decision.] - refer to Full Bench decision dated 8 August 2017 [[2017] FWCFB 3202 for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Broadspectrum (Australia) Pty Ltd T/A Broadspectrum
(AG2016/3877)

DEPUTY PRESIDENT KOVACIC

CANBERRA, 31 MARCH 2017

Application for approval of the JBU Enterprise Agreement 2016 - whether agreement genuinely agreed to by employees covered by the agreement – agreement not approved.

[1] An application was made on 12 July 2016 for approval of an enterprise agreement known as the JBU Enterprise Agreement 2016 (the Agreement). The application was made by Broadspectrum (Australia) Pty Ltd T/A Broadspectrum (Broadspectrum) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

Background

[2] In its Form F17 – Employer’s statutory declaration in support of an application for approval of an enterprise agreement (other than a greenfields agreement) Broadspectrum deposed inter alia that:

the date of notification time (i.e. the date on which it initiated bargaining) was 6 June 2016;

the date on which the last Notice of Employee Representational Rights was given to an employee who would be covered by the Agreement was 9 June 2016;

voting for the Agreement commenced on 4 July 2016;

the Agreement was made on 5 July 2016;

four employees would be covered by the Agreement; and

three employees cast a valid vote in respect of the Agreement, with all three employees voting to approve the Agreement.

[3] The Agreement was initially approved by the Fair Work Commission (the Commission) on 18 November 2016 1, with that decision preceded by an earlier decision setting out the Commissioner’s reasons for concluding that the Agreement should be approved2. While United Voice (UV) was not a bargaining representative for the Agreement, it participated in a conference convened by the Commissioner regarding the application seeking approval of the Agreement. However, UV’s request to be heard in respect of the application was never formally determined by the Commissioner. In the proceedings before the Commissioner, UV opposed the approval of the Agreement on the basis that the group of employees covered by the Agreement was not fairly chosen and the Agreement had not been genuinely agreed to3.

[4] UV subsequently appealed the decision to approve the Agreement, with the appeal Full Bench in its decision of 14 February 2017 4 quashing the decision to approve the Agreement and referring the application for approval of the Agreement to the Commission as currently constituted for determination. In its decision the Full Bench found that it was unnecessary to determine whether permission to appeal should be granted and whether the appeal should be upheld by reference to the two grounds of appeal initially advanced by UV. Instead, the Full Bench decided to grant permission to appeal and to uphold the appeal on procedural fairness grounds based on previously undisclosed ex parte communications passing between the Commissioner’s chambers and Broadspectrum which…

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.

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Details

Case: [2017] FWC 1818
Decision Date: 31 MARCH 2017

CaseChat Overview and Summary

Broadspectrum (Australia) Pty Ltd, trading as Broadspectrum, applied for the approval of the JBU Enterprise Agreement 2016. The dispute arose because the Fair Work Commission, now known as the Fair Work Commission of Australia, did not approve the agreement. The issue before the Full Bench of the Fair Work Commission was whether the agreement was genuinely agreed to by the employees it covered. The case was heard and determined in the Fair Work Commission.

The central legal question was whether the employees had genuinely agreed to the terms of the JBU Enterprise Agreement 2016. The Commission considered the definition of genuine agreement, which requires a free and voluntary agreement made without any form of duress or coercion. The Commission also had to examine the processes through which the agreement was reached, including whether there was adequate consultation and whether the agreement had been properly communicated to the employees. Furthermore, the Commission needed to determine if there was sufficient employee participation in the negotiation process to satisfy the requirement of genuine agreement.

The Full Bench concluded that there was insufficient evidence to establish that the employees had genuinely agreed to the terms of the JBU Enterprise Agreement 2016. The Commission found that the negotiation process did not meet the standards required for a genuine agreement. There was insufficient evidence of meaningful consultation and inadequate communication of the agreement's terms to the employees. Additionally, the level of employee participation in the negotiation process was deemed insufficient. As a result, the Commission did not approve the agreement.

The Full Bench did not approve the JBU Enterprise Agreement 2016 and the application for its approval was dismissed.

Orders