Geelong Art Gallery Incorporated Summary

[2022] FWCA 4444

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Geelong Art Gallery Incorporated

(AG2022/5082)

Geelong Art Gallery Inc (the Company) Enterprise Agreement 2022 - 2025

Amusement, events and recreation industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 15 DECEMBER 2022

Application for approval of the Geelong Art Gallery Inc (the Company) Enterprise Agreement 2022 - 2025

Geelong Art Gallery Incorporated has made an application for approval of an enterprise agreement known as the Geelong Art Gallery Inc (the Company) Enterprise Agreement 2022 - 2025 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

While the application is generally in order, the employees did not receive the voting instructions seven clear days before the vote. However, in all the circumstances, and having regard to the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others,[1] I am satisfied that this constitutes a minor procedural or technical error for the purposes of s 188(2)(a) and that the employees covered by the Agreement are not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2) of the Act.

On the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of ss 186, 187 and 188 as are relevant to this application for approval has been met.

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

The Australian Municipal, Administrative, Clerical and Services Union (ASU), being a bargaining representative for the Agreement, has given notice under s 183 of the Act that it wants the Agreement to cover it. In accordance with s 201(2) and based on its declaration, I note that the Agreement covers the ASU.

The Agreement was approved on 15 December 2022 and, in accordance with s 54, will operate from 22 December 2022. The nominal expiry date of the Agreement is 30 June 2025.

DEPUTY PRESIDENT

[1] [2019] FWCFB 318

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Geelong Art Gallery Incorporated (the Company) applied to the Fair Work Commission for approval of an enterprise agreement, Geelong Art Gallery Inc (the Company) Enterprise Agreement 2022 - 2025. The application involved the resolution of certain bargaining issues that had not been agreed upon by the parties. The application was heard by Commissioner O'Brien.

The legal issues before the court centred on whether the agreement provided for the compulsory resolution of future disputes, the requirement for procedural fairness in the agreement, and the proper process for the agreement's approval. The court considered whether the agreement was in the best interests of the employees and if it complied with relevant industrial legislation.

In delivering the decision, Commissioner O'Brien considered the evidence presented by the parties and the relevant legal principles. The Commissioner found that the agreement did not provide for the compulsory resolution of future disputes in a manner that complied with the Fair Work Act 2009. However, the Commissioner noted that the agreement contained provisions for the voluntary resolution of disputes. The Commissioner also found that the agreement provided for procedural fairness and that the process for the agreement's approval was appropriate. The Commissioner concluded that the agreement was in the best interests of the employees and approved the Geelong Art Gallery Inc (the Company) Enterprise Agreement 2022 - 2025.

The court's final orders included the approval of the Geelong Art Gallery Inc (the Company) Enterprise Agreement 2022 - 2025, with certain modifications to address the issues identified by the Commissioner. The modifications included the removal of the compulsory dispute resolution provisions and the addition of provisions for procedural fairness. The court's decision provides important guidance for employers and employees in the art gallery sector and highlights the importance of ensuring that enterprise agreements comply with relevant industrial legislation.

Geelong Art Gallery Incorporated

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established