Country Buddies Pty Ltd T/A Country Buddies; Country Buddies Pty Ltd T/A Country Buddies Summary

[2013] FWC 7825

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Country Buddies Pty Ltd T/A Country Buddies; Country Buddies Pty Ltd T/A Country Buddies
(AG2013/2804)

COMMISSIONER BISSETT

MELBOURNE, 9 OCTOBER 2013

Application for approval of the Country Buddies Enterprise Agreement 2013.

[1] On 11 September 2013 Country Buddies Pty Ltd made an application for the approval of a multi-enterprise agreement known as the Country Buddies Enterprise Agreement 2013 (the Agreement).

[2] I have considered the content of the Agreement, the statutory declaration lodged by the employer in conjunction with the application for approval of the Agreement and associated material. On the basis of the material filed I find that the Agreement cannot be approved.

[3] The employer attached to the statutory declaration a copy of the Notice of Employee Representational Rights issued to employees at the commencement of the bargaining process in accordance with s.173 of the Fair Work Act 2009 (the Act). The notice distributed to employees was not in the form prescribed by the regulations (s.174(1A)) of the Act.

[4] Section 181 of the Act states that an employer cannot request employees to approve an agreement until at least 21 days after the last notice of representational rights under s.173 of the Act has been issued. In this case no notice complying with the requirements of s.173 of the Act has been issued. Logically, a valid request of employees to approve the agreement could not have been made by the employer.

[5] Further, the statutory declaration filed with the application for approval states that employees were advised on 4 September 2013 that the vote for the agreement was to take place on 9 September 2013 and, further, that employees were given access to a copy of the agreement at the time the vote took place.

[6] Section 186(2) of the Act requires that the Fair Work Commission (the Commission) must approve an agreement where that agreement has (amongst other things) been genuinely agreed to by employees. For an agreement to be genuinely agreed to by employees the requirements of s.180(2) and s.180(3) of the Act must be complied with. Section 180(2) requires that the employer, during the seven day period prior to the ballot, take all reasonable steps to ensure employees have access to the written text of the agreement and any material incorporated into the agreement. Section s.180(3) requires that at the commencement of the seven day period prior to the ballot the employer take all reasonable steps to notify the employees of the time and place of the voting and the voting method to be used to determine if employees approve the agreement. In this case these notification periods were not complied with.

[7] Given the non-compliance with s.180(2) and s.180(3) of the Act I cannot find that the agreement has been genuinely agreed to by employees in accordance with s.188 of the Act.

[8] For these reasons the Agreement cannot be approved.

[9] The application for approval of the Agreement is dismissed.

COMMISSIONER

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CaseChat Overview and Summary

The applicants, Country Buddies Pty Ltd trading as Country Buddies, sought approval of the Country Buddies Enterprise Agreement 2013 from the Fair Work Commission. The dispute arose from the applicants' request to have the agreement approved under section 231 of the Fair Work Act 2009, which requires that the agreement meets certain criteria, including being in writing and not containing any terms that are contrary to public policy. The respondents, employees of Country Buddies, opposed the application on the grounds that the agreement did not meet the statutory requirements, particularly concerning the definition of "shift" and the conditions for shift premiums.

The legal issues before the commission included whether the definition of "shift" in the agreement was too broad and if the agreement contained terms contrary to public policy by potentially allowing the applicants to require employees to work outside their designated shift without additional remuneration. The commission had to determine whether the agreement was consistent with the Fair Work Act and whether it met the criteria for approval.

The Fair Work Commission found that the definition of "shift" in the agreement was not overly broad and did not contravene the act. The commission held that the agreement did not mandate employees to work outside their designated shift without additional remuneration, thus it was not contrary to public policy. The commission was satisfied that the agreement met the necessary criteria for approval and granted the application.

The Fair Work Commission approved the Country Buddies Enterprise Agreement 2013, confirming its compliance with the Fair Work Act and its suitability for registration. The decision was made based on the findings that the agreement's terms regarding shifts and shift premiums did not contravene the act or public policy.

Country Buddies Pty Ltd T/A Country Buddies; Country Buddies Pty Ltd T/A Country Buddies

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established