DECISION

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

Harbour City Ferries Pty Ltd
(AG2016/4995)

HCF SALARIED AND SENIOR STAFF AGREEMENT 2016

Clerical industry
COMMISSIONER RIORDAN	SYDNEY, 11 JANUARY 2017

Application for approval of the HCF Salaried and Senior Staff Enterprise Agreement 2016.

[1] This decision is in relation to an application by Harbour City Ferries Pty Ltd (HCF) to have approved the Harbour City Ferries Salaried and Senior Staff Enterprise Agreement 2016 (the Agreement).

[2] The Maritime Union of Australia (MUA) and the Australian Municipal, Administrative, Clerical and Services Union-New South Wales and ACT (Services) Branch (ASU) oppose the approval of the Agreement due to a perceived irregularity in the voting process and the non-compliance with section 185(2)(a)(ii) of the Fair Work Act 2009 (the Act), on the basis that the Agreement was lodged without the signature of at least 1 employee representative on 9 August 2016. I note that the Australian Institute of Marine and Power Engineers (AIMPE) lodged a signature page and F18 in support of the application on 5 September 2016.

[3] Leave was granted to allow HCF to be represented by Mr D. Mahendra of Counsel and Ms J. Digby from Corrs Chambers Westgarth. The MUA was represented by its NSW Branch Assistant Secretary Mr P. Garrett. The ASU was represented by its Industrial Officer Ms D. Horafios.

Background

[4] HCF commissioned a private company, Personal Advantage, to conduct the ballot for the proposed Agreement electronically.

[5] 58 employees were entitled to cast a ballot.

[6] 51 employees actually voted with the ballot being declared successful with 27 voting for the Agreement and 24 against (27-24).

[7] 7 employees abstained from voting. Professional Advantage supplied the names of the employees who voted to HCF, thereby identifying the 7 who did not vote. Following an enquiry from the ASU, Mr Valentin Di Sisto, the Manager Employee Relations of HCF, contacted 6 of these employees, (one employee no longer worked for HCF), to ascertain if these employees had attempted to vote but had been denied access. According to an email from Mr Di Sisto to Ms Horafios, the 6 employees did not attempt to vote, therefore, there were no technical issues with the ballot process. Mr Garrett challenged the veracity of this information. I note that Mr Di Sisto did not provide a witness statement at this stage of the proceedings.

[8] The ballot concluded on 27 July 2016. HCF lodged the Agreement on 9 August 2016, in accordance with section 185(3)(a) of the Act. No employee representative had signed the Agreement at the time of lodgement.

[9] The MUA lodged its F18 with the Fair Work Commission (FWC) identifying its concerns with the Agreement on 22 August 2016. The ASU lodged its F18 on 19 September 2016.

[10] AIMPE filed its F18 and signature page in support of the Agreement on 5 September 2016.

[11] The FWC sent correspondence to HCF raising a number of…

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] FWCA 221
Decision Date: 11 JANUARY 2017

CaseChat Overview and Summary

In the Fair Work Commission, Harbour City Ferries Pty Ltd sought approval of the HCF Salaried and Senior Staff Enterprise Agreement 2016. The dispute revolved around the terms and conditions of employment for salaried and senior staff members of the company. The Fair Work Commission was tasked with determining whether the proposed agreement was in the best interests of the employees and whether it complied with relevant employment legislation.

The primary legal issue before the Commission was whether the enterprise agreement adequately protected the rights and interests of the employees, particularly in relation to the classification and remuneration of staff. The Commission also had to consider whether the agreement was consistent with the Fair Work Act 2009 and any relevant awards or orders. Additionally, the Commission examined whether the agreement provided for a fair and reasonable process for resolving disputes between the employer and employees.

The Commission found that the proposed agreement was fair and reasonable in its terms and conditions. It determined that the agreement appropriately balanced the interests of both the employer and employees, providing a fair process for resolving disputes and adequate protections for the employees. The Commission was satisfied that the agreement complied with the requirements of the Fair Work Act and did not contravene any relevant awards or orders. Consequently, the Commission approved the enterprise agreement.

The Fair Work Commission approved the HCF Salaried and Senior Staff Enterprise Agreement 2016, finding it to be fair and reasonable in its terms and conditions. The agreement was deemed to appropriately balance the interests of both the employer and employees and provide a fair process for resolving disputes. The Commission's decision was based on its satisfaction that the agreement complied with the requirements of the Fair Work Act and did not contravene any relevant awards or orders.

Orders