INTERIM DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Eagle Eyes Group Pty Ltd T/A Eagleyes Security
(AG2017/1860)

COMMISSIONER GREGORY

MELBOURNE, 16 NOVEMBER 2017

Application for approval of the Eagle Eyes Group Enterprise Agreement 2017.

Introduction

[1] An application has been made for approval of an enterprise agreement known as the Eagle Eyes Group Enterprise Agreement 2017 (“the Agreement”). The application is made under s.185 of the Fair Work Act 2009 (Cth) (“the Act”) by Eagle Eyes Group Pty Ltd T/A Eagleyes Security(“Eagle Eyes.”) It is a single enterprise agreement.

[2] The Commission has, following receipt of the application, sought clarification from the Applicant about a range of matters to do with the Agreement and the processes involved in making the Agreement. The matter was subsequently set down for hearing on 22 September 2017 to enable further submissions and evidence to be provided in support of the application.

[3] However, United Voice, who were not a bargaining representative for the Agreement, also seek to be heard in regard to the application. The Applicant opposes the Union being heard on the basis that they were not a bargaining representative in the negotiations for the Agreement. This decision accordingly deals with whether it is appropriate for United Voice to be heard in regard to the application.

[4] Mr N. Arends and Mr H. Lewis from ER Strategies were given permission to appear on behalf of the Applicant under s.596(2)(a) on the basis that the matter involves a degree of complexity and their involvement might enable it to be dealt with more efficiently. Mr H. Pararajasingham and Mr M. Vance appeared on behalf of United Voice.

The Submissions and Evidence

United Voice

[5] United Voice submits that s.590 of the Act provides the Commission with the power to inform itself in regard to a matter in any way it considers appropriate. It also submits that it is eligible to represent the employees who would be covered by the proposed Agreement.

[6] It also makes reference to the recent Interim Decision of Commissioner Cambridge handed down in regard to the application for approval of the All Districts Coating Enterprise Agreement 2017. 1 It submits that it dealt with a similar situation where a Union was seeking to be heard in regard to an application for approval of an Agreement in circumstances where it was not a bargaining representative, and instead sought to be heard by virtue of the discretion provided under s.590 of the Act.

[7] United Voice submits that Commissioner Cambridge concluded in that decision that even though the Union had not been directly involved in the enterprise bargaining negotiations, and was not a formal bargaining representative, “the presence of a contradictor” 2 could be of assistance to the Commission in discharging its statutory obligations.

[8] United Voice continues to submit that a similar situation applies in this case, particularly given its extensive knowledge of the security industry, and the consequent assistance it can provide in understanding…

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: [2017] FWC 6036
Decision Date: 16 NOVEMBER 2017

CaseChat Overview and Summary

Eagle Eyes Group Pty Ltd, trading as Eagleyes Security, sought approval for an enterprise agreement under the Fair Work Act 2009. The applicant opposed United Voice's participation in the hearing, as it was not a bargaining representative. United Voice sought to be heard on the basis that it could provide insights into the security industry and help the Commission understand how the agreement would apply in practice. The court examined the relevant legal provisions and previous decisions concerning the right of a non-bargaining representative to be heard in such matters. It noted that the decision to approve an enterprise agreement primarily concerns the enterprise level and does not create rights of general application across an industry. However, the court decided to allow United Voice to be heard in this particular case, as the circumstances suggested that its input could assist the Commission in carrying out its statutory responsibilities, particularly in the context of the "better off overall" test assessment.

The court concluded that the proposed agreement was not the product of a bargaining and negotiation process between the employer and employees. Instead, it was developed by the employer and presented to the employees for their consideration and approval. The court also noted that the proposed agreement contained several distinct features that were not aligned with the existing award structure. These considerations, along with United Voice's history of involvement in the security industry, led the court to allow the union to be heard in the proceedings. The court ordered that written materials supporting the application be provided to United Voice, and the union was given the opportunity to submit further written submissions by a specified date. If United Voice wished to be heard in the matter, a further hearing would be scheduled for the week commencing 27 November 2017.

Orders