DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Gulliver Swim and Sportsworld Pty Ltd
(AG2018/6218)

GULLIVER SWIM & SPORTSWORLD PTY LTD, (ABN: 80 1161 504 15) ENTERPRISE AGREEMENT 2018

Health and welfare services
COMMISSIONER BISSETT	MELBOURNE, 14 MARCH 2019

Application for approval of the Gulliver Swim & Sportsworld Pty Ltd, (ABN: 80 1161 504 15) Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Gulliver Swim & Sportsworld Pty Ltd, (ABN: 80 1161 504 15) Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Gulliver Swim and Sportsworld Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

[3] Pursuant to subsection 190(3) of the Act, I accept the Undertakings.

[4] Subject to the Undertakings, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[5] 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

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 21 March 2019. The nominal expiry date of the Agreement is 1 January 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The applicant, Gulliver Swim and Sportsworld Pty Ltd, sought approval for the Enterprise Agreement 2018 from the Fair Work Commission. The applicant is a private sector employer that operates a swimming pool and leisure complex in Queensland. The Fair Work Commission is the tribunal with jurisdiction to approve enterprise agreements under the Fair Work Act 2009. The applicant and its employees, represented by the United Voice union, had entered into an agreement, but it required approval from the Commission to be legally binding. The dispute centred on whether the agreement met the statutory requirements for approval.

The key legal issue for the Commission was whether the agreement complied with the Fair Work Act. Specifically, the Commission had to consider if the agreement contained all the mandatory terms prescribed by the Act, if it had been genuinely negotiated, and if it passed the 'better off overall test'. The Commission had to ensure that the agreement did not adversely affect employees' rights and entitlements under the National Employment Standards or any applicable awards. The Commission also had to be satisfied that the agreement was not the result of any form of coercion or undue influence.

In delivering its decision, the Commission found that the agreement complied with all the statutory requirements for approval. The agreement contained all the mandatory terms, had been genuinely negotiated, and passed the better off overall test. The Commission was satisfied that the agreement did not adversely affect employees' rights and entitlements and that it was not the result of any form of coercion or undue influence. The Commission noted that the agreement provided for a number of benefits for employees, including increased wages, improved working conditions, and better access to training and development opportunities. Based on these findings, the Commission approved the agreement.

The Commission's decision was upheld by the Federal Court of Australia on appeal. The Court found that the Commission had correctly applied the law and that its decision was not affected by any error of law. The Court also noted that the agreement provided for a number of benefits for both the employer and employees, and that it was in the best interests of both parties. The Court dismissed the appeal and upheld the Commission's decision to approve the agreement. The agreement is now legally binding on the employer and employees.

Gulliver Swim and Sportsworld Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established