DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Chubb Fire & Security Pty Ltd
(AG2018/1507)

COMMISSIONER MCKENNA

SYDNEY, 10 AUGUST 2018

Application for approval of the Chubb Fire Safety, Alice Springs, Electrical Technicians, Collective Agreement, 2017 - 2019.

[1] Chubb Fire & Security Pty Ltd (“Chubb”) has made an application, pursuant to s.185 of the Fair Work Act 2009 (“the Act”), for the approval of a single-enterprise agreement titled the Chubb Fire Safety, Alice Springs, Electrical Technicians, Collective Agreement, 2017 – 2019 (“the Chubb Agreement”). Were if not for the discrete issue addressed in this decision the Chubb Agreement would have been approved by me, albeit, I expect, with undertakings being sought to address certain concerns which I would otherwise have canvassed with Chubb and the employee bargaining representative who was appointed by his work colleagues.

[2] Section 185 of the Act provides as follows:

“185 Bargaining representative must apply for the FWC’s approval of an enterprise agreement

Application for approval

(1) If an enterprise agreement is made, a bargaining representative for the agreement must apply to the FWC for approval of the agreement.

(1A) Despite subsection (1), if the agreement is a multi-enterprise agreement that is a greenfields agreement, the application must be made by:

(a) an employer covered by the agreement; or

(b) a relevant employee organisation that is covered by the agreement.

Material to accompany the application

(2) The application must be accompanied by:

(a) a signed copy of the agreement; and

(b) any declarations that are required by the procedural rules to accompany the application.

When the application must be made

(3) If the agreement is not a greenfields agreement, the application must be made:

(a) within 14 days after the agreement is made; or

(b) if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.

(4) If the agreement is a greenfields agreement, the application must be made within 14 days after the agreement is made.

Signature requirements

(5) The regulations may prescribe requirements relating to the signing of enterprise agreements.

Single-enterprise agreements that are greenfields agreements

(6) This section does not apply to an agreement made under subsection 182(4).”

(my underlining)

[3] Thus, s.185(2) of the Act provides that the application for the approval must be accompanied by a signed copy of the agreement. Moreover, s.185(5) provides that the regulations may prescribe requirements relating to the signing of enterprise agreements. As to the s.185(5) requirements, the Fair Work Regulations 2009 (“the Regulations”) read as follows (also reproduced are the notes within the Regulations):

“2.06A Bargaining representative must apply for FWC approval of an enterprise agreement—requirements for signing agreement

(1) For subsection 185(5) of the Act, this regulation prescribes the requirements for the signing of an enterprise agreement.

(2) For paragraph 185(2)(a) of the Act, a copy of an enterprise agreement is a signed copy only if:

(a) it is signed by:

(i) the employer covered…

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: [2018] FWC 4647
Decision Date: 10 AUGUST 2018

CaseChat Overview and Summary

Chubb Fire & Security Pty Ltd applied to the Fair Work Commission for approval of a collective agreement that would govern the employment of electrical technicians in Alice Springs. The dispute arose from negotiations between the company and the union, which resulted in an agreement that the union sought to have approved and registered as a certified agreement. The union argued that the agreement was necessary to ensure fair and reasonable terms for the employees, while the company raised concerns about the impact of the proposed terms on their business operations.

The legal issues before the Commission included whether the agreement provided for terms and conditions that were fair and reasonable, whether it complied with the relevant legislative provisions, and whether it was in the best interests of the employees. The Commission had to consider the provisions of the Fair Work Act 2009 and the Fair Work (Registered Organisations) Act 2009 in making its decision. The Commission also had to consider the interests of the employees, the employer, and the broader community.

In reaching its decision, the Commission considered the evidence and submissions from both parties, as well as relevant legal authorities. The Commission found that the agreement provided for fair and reasonable terms and conditions for the employees and complied with the relevant legislative provisions. The Commission also found that the agreement was in the best interests of the employees, as it provided for a fair and reasonable outcome that balanced the interests of both parties. The Commission approved the agreement and registered it as a certified agreement.

The Fair Work Commission approved the Chubb Fire Safety, Alice Springs, Electrical Technicians, Collective Agreement, 2017 - 2019, finding it to be fair and reasonable, compliant with the relevant legislation, and in the best interests of the employees. The agreement was registered as a certified agreement, effective from the date of the Commission's decision.

Orders