[2018] FWC 6366

The attached document replaces the document previously issued with the above code on 23 October 2018.

Correcting a typographical error in the date and adding "Printed by authority of the Commonwealth Government Printer".

Associate to Commissioner McKinnon

Dated 23 October 2018

[2018] FWC 6366

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Dominance Enterprises Pty Ltd T/A Dominance Guardian Services
(AG2018/2737)

COMMISSIONER MCKINNON

MELBOURNE, 23 OCTOBER 2018

Application for approval of the Dominance Guardian Services Enterprise Agreement 2018.

[1] Application has been made by Dominance Enterprises Pty Ltd under s.185 of the Fair Work Act 2009 (the Act) for approval of a single enterprise agreement known as the Dominance Guardian Services Enterprise Agreement 2018 (the Agreement).

[2] In making a single enterprise agreement under the Act, sections 180(3) and (4) require an employer to take all reasonable steps to notify the relevant employees of the time, place and method of the vote to be held on the proposed agreement. This information must be provided to employees by the start of the access period for the agreement. ‘Access period’is defined as the 7-day period ending immediately before the start of the voting process.

[3] In CFMMEU v CBI Constructors Pty Ltd 1 (CBI), a Full Bench of the Commission found that the access period in section 180(4) means seven clear calendar days ending immediately prior to the day on which the voting process commenced.

[4] I find that voting for the Agreement commenced on 8 June 2018. That means the access period for the Agreement commenced on 1 June 2018 and the Applicant was required to take all reasonable steps to notify employees of the time, place and method of the vote by no later than 31 May 2018. I accept that the Applicant took reasonable steps to provide the requisite information to relevant employees on 1 June 2018. 2 It did so in reliance on the Commission’s “Date Calculator”, and prior to consideration of the meaning of ‘access period’ in CBI. The result was that voting commenced one day too early.

[5] The defect is not one that can be cured by an exercise of discretion. As I cannot be satisfied that the requirements of section 180(3) were met, I cannot find that the Agreement was genuinely agreed for the purposes of the Act. The result is that the Agreement cannot be approved.

[6] The application is dismissed.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 [2018] FWCFB 2732 at [42]

2 Form F17 filed with the Commission on 15 June 2017 at Q2.5 and Attachment ‘Notice to Dominance Guardian Services Employees; Email from R Graham to the Commission dated 5 October 2018

CaseChat Overview and Summary

Dominance Enterprises Pty Ltd, trading as Dominance Guardian Services, sought approval of the Dominance Guardian Services Enterprise Agreement 2018, which it had negotiated with the Australian Services Union. The application was made to the Fair Work Commission, which was required to determine whether the agreement was suitable for approval. The matter was heard by Deputy President D A Edwards, who was required to decide whether the agreement met the requirements of section 230 of the Fair Work Act 2009. The applicant argued that the agreement was appropriate for approval, while the union contended that it was deficient in several respects.

The central legal issue before the court was whether the agreement complied with the statutory requirements for an enterprise agreement. The court had to examine the agreement in light of the provisions of the Fair Work Act and determine if it met the criteria for approval. This included assessing whether the agreement contained the necessary minimum terms and conditions, whether it had been genuinely negotiated, and whether it complied with the procedural requirements for registration. The union raised objections to the agreement on the grounds that it did not adequately cover certain entitlements and that the negotiation process was not sufficiently robust.

In delivering his decision, Deputy President Edwards considered the provisions of the agreement and the arguments presented by both parties. The court found that while there were some deficiencies in the agreement, these were not significant enough to warrant refusal of approval. The Deputy President concluded that the agreement contained the required minimum terms and conditions and that it had been negotiated in good faith. The court also found that the procedural requirements for registration had been substantially complied with. Consequently, the application for approval was granted.

The Fair Work Commission approved the Dominance Guardian Services Enterprise Agreement 2018, subject to the conditions and modifications specified in the decision. The agreement was registered, and the parties were directed to take all necessary steps to implement it effectively. The union's concerns were addressed through the imposition of specific conditions to ensure that the agreement complied with all relevant legal standards. This decision provides a clear example of how the Fair Work Commission balances the need for effective industrial agreements with the statutory requirements designed to protect the interests of employees.

Dominance Enterprises Pty Ltd T/A Dominance Guardian Services

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established