Commonwealth of Australia as represented by the Department of Parliamentary Services
[2024] FWCA 1616
•6 MAY 2024
| [2024] FWCA 1616 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.602A - application to validate the approval of an agreement
Commonwealth of Australia as represented by the Department of Parliamentary Services
(AG2024/1134)
| Commonwealth employment | |
| DEPUTY PRESIDENT MASSON | MELBOURNE, 6 MAY 2024 |
Application for validation of approval of the Department of Parliamentary Services Enterprise Agreement 2024.
An application has been made to validate the approval of the Department of Parliamentary Services Enterprise Agreement 2024[1] (the Agreement), which was approved on 28 March 2024. The application was made pursuant to s.602A of the Fair Work Act 2009 (the Act) by the Commonwealth of Australia as represented by the Department of Parliamentary Services (DPS). The application is made in circumstances where the DPS says it filed a draft agreement (the Draft Agreement) and not the agreement as made (the Agreement as Made) with its application for approval of the Agreement.
Following allocation of the matter to my Chambers, a Mention was conducted on 17 April 2024 following which Directions were issued allowing for the filing of material in support of the application by the DPS by the close of business Tuesday 23 April 2024. Unions covered by the Agreement and employee bargaining representatives were afforded an opportunity to file material in reply by close of business Monday 29 April 2024.
The DPS filed material in accordance with the Directions, which included a witness statement prepared by Ellen Patat-Tanevska (Acting Senior HR Advisor), an outline of submissions and other documents on which it sought to rely. None of the employee organisations covered by the Agreement or employee bargaining representatives filed any material in reply to the Applicant. I consequently proceed on the basis that the application is not opposed.
The relevant factual background to the s 602A application was provided in Ms Patat-Tanevska’s witness statement and may be summarised as follows;
· a final version of the Agreement was circulated and available to be accessed by employees during the access period between 13 February and 8.59 am on 26 February 2024;
· the ballot period ran from 9.00am on 26 February to 9.00am on 4 March 2024;
· a valid majority of employees approved the Agreement, with the Agreement made on 4 March 2024;
· Ms Patat-Tanevska assisted in the preparation of the Form F16 and Form 17B for the Agreement approval application;
· the application for approval of the Agreement was filed with the Fair Work Commission (Commission) on 15 March 2024;
· the Agreement was approved by Deputy President Masson on 28 March 2024;
· on 3 April 2024, Ms Tanevska realised that she had erroneously attached the Draft Agreement with the application for approval;
· the approved Agreement was not the version voted on by employees and was lodged in error;
· on becoming aware of the error, Ms Tanevska contacted my Chambers by email, explained the administrative error made by DPS and set out the discrepancies between the Agreement as Made and the Draft Agreement that was approved by the Commission;
· the DPS were encouraged by the Commission to consider filing a s 602A application in the circumstances; and
· the s 602A application was filed on 8 April 2024
Included in the material filed by DPS in support of the s 602A application was a document showing the tracked change differences between the Agreement as Made and the Draft Agreement. Relevantly there are twelve affected clauses.
Statutory Provisions
Section 602A of the Act was inserted into the Act by way of the Fair Work Legislation Amendment (Secure Jobs Better Pay) Bill 2022 (the Secure Jobs Better Pay Bill 2022), commenced operation on 6 December 2022 and states as follows;
“602A Validation of approval of enterprise agreement
(1) If:
(a) after an enterprise agreement was made:
(i) an application for the approval of a draft of the enterprise agreement was erroneously made to the FWC; and
(ii) the FWC approved the draft of the agreement; and
(b)the FWC is satisfied that, assuming that the application had been an application for the approval of the enterprise agreement that was made, the FWC would have approved the enterprise agreement that was made;
the FWC may determine in writing that the approval is as valid and effective, and is taken to have been as valid and effective, as it would have been if:
(c)the application had been an application for the approval of the enterprise agreement that was made instead of an application for the approval of the draft of the agreement; and
(d)the requirements set out in subsection 185(2) or section 185A (whichever is applicable) had been met in relation to the application; and
(e)the approval had been an approval of the enterprise agreement that was made instead of an approval of the draft of the agreement.
(2) The FWC may make a determination under subsection (1):
(a)on its own initiative; or
(b)on application.
………………….”
The Explanatory Memorandum supporting the Secure Jobs Better Pay Bill 2022 (the EM) in dealing with ss 602A & B relevantly states as follows;
“Section 602A—Validation of approval of enterprise agreements
Section 602B—Validation of approval of variation of enterprise agreements
781. New sections 602A and 602B would address a problem that arises if a party erroneously submits the wrong version of an agreement or variation to the FWC for approval (ie a draft, not being the enterprise agreement or variation that was made by the parties), and it is approved.
782. The provisions would confer a discretion on the FWC to validate the relevant approval decision, as if the error had not occurred, and the decision had been made by reference to the correct version (ie the agreed enterprise agreement or variation). It would be for the FWC to determine whether an error had occurred.
783. The validation process could commence on the FWC’s own initiative or on application (new subsections 602A(2) or 602B(2)).”
The ‘problem’ referred to in paragraph 781 of the EM was highlighted in an appeal decision in Yarra Valley Water Corporation v Australian Municipal, Administrative, Clerical and Services Union[2] (Yarra Valley Water) where, in dealing with an appeal of an agreement approval decision and confronted by an analogous set of facts to those in the present matter, the Full Bench said as follows;
“[2] The facts of the matter are not in dispute. The appellant engaged in bargaining for an enterprise agreement with employees over 11 months during 2020-2021. The Australian Municipal, Administrative, Clerical and Services Union (ASU) and the Association of Professional Engineers, Scientists and Managers, Australia (APESMA) were bargaining representatives for the agreement. The proposed agreement arising from this bargaining was put to a vote of employees on 13-14 July 2021, and approved by a large margin. On 28 July 2021, the appellant lodged an application for approval of an enterprise agreement. However, the agreement which was approved by employees, and made in accordance with s 182(1), was not attached to the application. Instead, an earlier draft of the agreement was inadvertently attached to the application. The mistake was not identified by the appellant, and thus not brought to the Deputy President’s attention, prior to his decision. Consequently, it was the draft document the subject of the application (the purported agreement), not the agreement upon which the employees actually voted, which was ultimately approved by the Deputy President. The mistake was only identified by the appellant on 19 August 2021, two days after the Deputy President’s decision.”
The Full Bench in Yarra Valley Water went on to find as follows;
“[5] It is clear, on the undisputed facts, that the purported agreement approved by the Deputy President was never made in accordance with s 182(1) of the FW Act and was accordingly incapable of approval under s 186. In the circumstances it is appropriate to grant permission to appeal, and we uphold the appeal and quash the decision.”
It is apparent from the text of the legislation supported by the EM that s 602A now confers discretion to the Commission to validate the approval of an enterprise agreement in circumstances where a draft version of an enterprise agreement, rather than the version approved by a valid majority of employees, has been filed with an application for approval of an enterprise agreement and has been subsequently approved by the Commission. That discretion provides an alternative to the only path previously available to the Commission in circumstances of an incorrect version of an enterprise agreement having been lodged and approved, that of quashing an agreement approval decision.
On application or on the Commission’s own initiative, the discretion conferred by s 602A may be exercised where the Commission is satisfied that an incorrect draft version of an enterprise agreement was lodged and approved by the Commission and where the statutory approval requirements for an enterprise agreement would have been met if the correct version of the enterprise agreement as made had been filed.
Consideration
Returning to the present matter, I am satisfied based on the unchallenged evidence of Ms Patat-Tanevska that the Draft Agreement filed and subsequently approved by the Commission was not the agreement version that was voted on and approved by employees. The Agreement as Made was provided to employees, was explained to employees, was voted on and ultimately approved by a valid majority of employees. These circumstances clearly fall within those contemplated by s 602A(1) of the Act.
I am further satisfied on reviewing the terms of the Agreement as Made that had it been filed; it would have been approved by the Commission. That is because each of the statutory approval requirements would have been met including that it (the Agreement as Made) was genuinely agreed (s 186(2)(a)), none of its terms contravene s 55 of the Act (s 186(2)(c)) and it passes the better off overall test (the BOOT) (s 186(2)(d)). I am consequently satisfied that the requirements of s 602A(1)(b) are met.
It follows from the foregoing that the statutory pre-requisites necessary for the exercise of the Commission’s discretion pursuant to s 602A are present. In circumstances where the application is not opposed and where no matters that militate against the exercise of that discretion have been either raised by the parties or identified by the Commission, I determine as follows.
Approval of the Agreement is as valid and effective, and is taken to have been as valid and effective, as it would have been if:
(1)the application had been an application for the approval of the Agreement as Made instead of an application for approval of the Draft Agreement; and
(2)the requirements set out in subsection 185(2) had been met in relation to the application; and
(3)the approval had been an approval of the Agreement as Made instead of an approval of the Draft Agreement.
In conjunction with this Determination, the Commission will take steps to publish the Agreement as Made as the approved Agreement on the Commission’s website as soon as practicable.
DEPUTY PRESIDENT
[1] [2024] FWCA 1062.
[2] [2021] FWCFB 6006
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