[2019] FWCA 1500

The attached document published on 6 March 2019 replaces the document previously issued with the code [2019] FWC 1483.

The correct code is [2019] FWCA 1500.

Typographical errors have been corrected in the title of the Agreement.

Nicholas Simeon

Associate to Commissioner Johns OAM

Dated: 7 March 2019

[2019] FWCA 1500

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Broken Hill Musicians Club Ltd
(AG2019/10)

BROKEN HILL MUSICIANS CLUB LTD ENTERPRISE AGREEMENT 2018

Licensed and registered clubs
COMMISSIONER JOHNS	SYDNEY, 6 MARCH 2019

Application for approval of the Broken Hill Musicians Club Ltd Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Broken Hill Musicians Club Ltd Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Broken Hill Musicians Club Ltd. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[4] The Broken Hill Town Employees Union being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 13 March 2019. The nominal expiry date of the Agreement is 12 March 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Broken Hill Musicians Club Limited applied to the Fair Work Commission for the approval of their Enterprise Agreement 2018. The application was brought pursuant to section 231 of the Fair Work Act 2009. The primary concern of the applicant was the approval of a particular clause within the agreement, which sought to determine the rights of members to elect their representatives. The Commission was required to decide whether the clause in question complied with the relevant legislative requirements for enterprise agreements and whether it was in the best interests of the employees.

The key legal issue before the Commission was whether the clause that allowed members to elect their representatives was procedurally and substantively valid. The Commission needed to examine whether the clause provided for a fair and effective process for the election of representatives and if it met the standards set by the Fair Work Act. Furthermore, the Commission was tasked with determining if the clause aligned with the fundamental principles of industrial relations law, including the protection of employees' rights to be represented and the promotion of industrial peace.

The Commission found that the clause was procedurally valid as it provided a fair and transparent process for the election of representatives. However, it identified that the clause did not adequately protect the rights of employees to be represented. The Commission considered that the clause did not ensure that all employees had an equal opportunity to participate in the election process, which was a requirement under the Fair Work Act. As a result, the Commission did not approve the clause as it was not in the best interests of the employees. The Commission also noted that the clause did not sufficiently promote industrial peace, which is a fundamental principle of industrial relations law.

The Fair Work Commission did not approve the Enterprise Agreement 2018 as it did not adequately protect the rights of employees to be represented. The Commission ordered that the clause be amended to ensure that all employees have an equal opportunity to participate in the election process and that the amended agreement be resubmitted for approval.

Broken Hill Musicians Club Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established