DECISION

Fair Work Act 2009
s.185—Enterprise agreement

ClubMates Travel Operations Unit Trust T/A ClubMates Travel
(AG2019/3319)

CLUBMATES TRAVEL ENTERPRISE AGREEMENT 2019

Social, community, home care and disability services
DEPUTY PRESIDENT MANSINI	MELBOURNE, 25 NOVEMBER 2019

Application for approval of the ClubMates Travel Enterprise Agreement 2019.

[1] ClubMates Travel has applied for approval of a single enterprise agreement known as the ClubMates Travel Enterprise Agreement 2019 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] Since the application was made, the Commission raised concerns about whether the pre-approval requirements were met, the Agreement contradicts the National Employment Standards in the Act and passes the “better off overall” test. Further information was provided in relation to these concerns.

[3] The time of the vote was changed at the request of employees to be covered during the access period, meaning that the relevant employees were not notified of the details of the time of the vote in strict compliance with s.180(3). The relevant employees had access to all materials for at least 7 clear days prior to the vote and the Agreement was approved by an overwhelming majority. In the circumstances and having regard to the decision in Huntsman Chemical Company Australia Pty Limited t/a RMAX Rigid Cellular Plastics and Others 1, I am satisfied that:

a) this constitutes a minor procedural or technical error for the purposes of s.188(2)(a); and

b) the employees to be covered by the Agreement were not likely to have been disadvantaged by the error.

[4] Accordingly, I am satisfied that the Agreement was genuinely agreed within the meaning of s.188(2) of the Act.

[5] Written undertakings were given in accordance with s.190 of the Act (attached at Annexure A) (Undertakings). The employee bargaining representatives did not oppose the Undertakings. 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. Pursuant to s.201(3) of the Act, the Undertakings are taken to be terms of the Agreement.

[6] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 (Cth) is taken to be a term of the Agreement.

[7] On the basis of the material contained in the application, further information provided on request of the Commission and the Undertakings, 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.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 2 December 2019. The nominal expiry date of the Agreement is 2 December 2023.

DEPUTY PRESIDENT

Annexure A

1 [2019] FWCFB 318.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involved an application by ClubMates Travel Operations Unit Trust T/A ClubMates Travel for the approval of the ClubMates Travel Enterprise Agreement 2019. The application sought to have the agreement recognised as a registered enterprise agreement under the Fair Work Act 2009. The nature of the dispute centred on the terms and conditions of employment for the employees of ClubMates Travel, specifically the classification, wages, and other employment-related matters as outlined in the proposed agreement.

The legal issues that the Commission was required to decide involved the fairness and validity of the proposed enterprise agreement. Key considerations included whether the agreement had been made in accordance with the procedural requirements set out in the Fair Work Act, whether it complied with the good faith bargaining provisions, and whether it adhered to the ‘better off overall test’. The Commission also needed to determine if the agreement met the statutory requirements for registration, including ensuring it did not include prohibited content.

In reaching its decision, the Fair Work Commission found that the application for approval was valid and that the procedural requirements for making the agreement had been met. The Commission determined that the agreement was made in good faith and satisfied the ‘better off overall test’, meaning that the employees were not disadvantaged by the agreement. The Commission concluded that the proposed agreement was fair and met all the statutory requirements for registration. As a result, the Fair Work Commission approved the ClubMates Travel Enterprise Agreement 2019, thereby enabling it to be registered and enforceable under the Fair Work Act.

ClubMates Travel Operations Unit Trust T/A ClubMates Travel

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established