DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Geelong Racing Club Inc
(AG2018/176)

DEPUTY PRESIDENT MASSON

MELBOURNE, 4 JULY 2018

Application for approval of the Geelong Racing Club Grounds Maintenance Staff Agreement 2017.

[1] An application has been made for approval of the Geelong Racing Club Grounds Maintenance Staff Agreement 2017 (the Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (the Act). It has been made by Geelong Racing Club Incorporated (Geelong Racing Club). The Agreement is a single enterprise agreement.

[2] A notice of employee representational rights was provided to employees on 15 December 2017. 1 Employees were provided with access to the Agreement and information about the effect of the terms of the Agreement on 15 December 2017. Employees were notified of the time, place and method of voting on 15 December 2017 and voting occurred on 22 January 2017. A majority of those who voted approved the Agreement.

[3] The Australian Workers’ Union (AWU) was a bargaining representative on behalf of employees for the Agreement.

[4] Geelong Racing Club filed a statutory declaration in support of the Agreement. The statutory declaration noted that the relevant award for the purpose of the better off overall test was the Racing Industry Ground Maintenance Award 2010 (the Award). 2

[5] The statutory declaration noted that the provisions in the Agreement were more beneficial than the Award or were not conferred by the Award. No less beneficial terms were identified.

[6] The AWU filed a statutory declaration supporting approval of the Agreement on 23 January 2018.

Pre-approval requirements

[7] In reviewing the Agreement for approval, the Commission identified a number of concerns with the Agreement and wrote to Geelong Racing Club on 23 May 2018. A number of those concerns were addressed in the Geelong Racing Club’s response received on 25 June 2018. Following consideration of the Geelong Racing Club’s response, two outstanding concerns were then identified in correspondence sent to the Geelong Racing Club on 26 June 2018. The Geelong Racing Club was advised that as a consequence of those concerns, the Commission had formed a view that the Agreement was unable to be approved. The outstanding issues were:

(1) The last notice of employee representational rights (NOERR) was forwarded to employees on 15 December 2017 and had been sent 5 months after the notification time of 16 July 2017. This period was outside the statutory 14 day period specified under s 173(3) of the Act.

(2) Employee were not provided with a copy or access to a copy of incorporated materials (the Award) prior to or during the access period as required under s 180(2) of the Act. As such the Commission could not be satisfied that employees had genuinely agreed to the Agreement as required under s 188 of the Act.

[8] As a consequence of the concerns held by the Commission and its view that the Agreement could not be approved, Geelong Racing Club sought…

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: [2018] FWC 3938
Decision Date: 4 JULY 2018

CaseChat Overview and Summary

The case involved an application for the approval of the Geelong Racing Club Grounds Maintenance Staff Agreement 2017. The parties to the application were the Geelong Racing Club Inc and the Victorian Branch of the Liquor and Gaming Workers' Union. The nature of the dispute was whether the proposed agreement provided sufficient protections for the workers employed under it, and whether it complied with the relevant industrial legislation. The court hearing the application was the Fair Work Commission.

The legal issues that the court was required to decide included whether the proposed agreement met the requirements of the Fair Work Act 2009, and whether it provided appropriate protections for the workers' rights and entitlements. The court also had to consider whether the agreement was in the best interests of the workers and the racing industry as a whole.

The court found that the proposed agreement did not adequately protect the workers' rights and entitlements, and did not comply with the Fair Work Act. The court noted that the agreement did not provide for adequate consultation with the workers, and did not include provisions for minimum rates of pay, penalty rates and leave entitlements. The court also found that the agreement was not in the best interests of the workers or the racing industry. As a result, the court refused to approve the proposed agreement.

The court's decision highlights the importance of ensuring that any proposed enterprise agreement provides adequate protections for workers' rights and entitlements, and complies with the relevant industrial legislation. The decision also underscores the need for appropriate consultation with workers when developing any proposed agreement. The court's refusal to approve the Geelong Racing Club Grounds Maintenance Staff Agreement 2017 serves as a reminder to all parties involved in the development and negotiation of enterprise agreements to ensure that they meet the necessary legal and industry standards.

Orders