JTB Australia T/A JTB Australia Pty Ltd

[2023] FWCA 2085

[2023] FWCA 2085

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

JTB Australia T/A JTB Australia Pty Ltd

(AG2023/1310)

JTB AUSTRALIA ENTERPRISE AGREEMENT 2023

Tourism industry
COMMISSIONER HUNT	BRISBANE, 10 JULY 2023

Application for approval of the JTB Australia Enterprise Agreement 2023

1. JTB Australia T/A JTB Australia Pty Ltd (the Employer) has applied for approval of an enterprise agreement known as the JTB Australia Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act).  The Agreement is a single-enterprise agreement.

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, commencing operation on 6 June 2023.

1. Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. Question 17 of the Form F17 provides that the notification time for the Agreement was 16 March 2023.

1. Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The better off overall test provisions in Part 2-4 of the Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the Agreement was made before 6 June 2023. Question 25.2 of the Form F17 provides that the Agreement was made on 28 April 2023.

1. The notice of employee representational rights (NERR) lodged with the Fair Work Commission (the Commission) appears to reference the existing Agreement being JTB Australia Enterprise Agreement 2018 (2018 Agreement), instead of the proposed Agreement. As this is the only NERR provided at lodgement, I expressed to the Employer that it is unclear if employees were provided with the correct NERR for the proposed Agreement. The Employer confirmed that the NERR issued to employees made reference to the 2018 Agreement on the premise that (at that time), it was proposed to replicate that agreement. During the course of bargaining, changes were made to the agreement, including by reference to the name of the agreement.

1. The Employer contended that the NERR met the requirements of the Act and Fair Work Regulations 2009.  I disagree, as the NERR did not reference a proposed agreement; it referenced an existing agreement. 

1. Section 188 of the Act as it existed prior to 6 June 2023 provided: 

“(1)     An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that:

(a)          the employer, or each of the employers, covered by the agreement complied with the following provisions in relation to the agreement:

(i)  subsections 180(2), (3) and (5) (which deal with pre-approval steps);

(ii)  subsection 181(2) (which requires that employees not be requested to approve an enterprise agreement until 21 days after the last notice of employee representational rights is given); and

(b)         the agreement was made in accordance with whichever of subsection 182(1) or (2) applies (those subsections deal with the making of different kinds of enterprise agreements by employee vote); and

(c)          there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees.

(2)       An enterprise agreement has also been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that:

(a)       The agreement would have been genuinely agreed to within the meaning of subsection (1) but for minor procedural or technical errors made in relation to the requirements mentioned in paragraph (1)(a) or (b), or the requirements of sections 173 and 174 relating to a notice of employee representational rights; and

(b)       The employees covered by the agreement were not likely to have been disadvantaged by the errors, in relation to the requirements mentioned in paragraph (1)(a) or (b) or the requirements of section 173 and 174.”

1. As the notification time for the Agreement was before 6 June 2023, I am satisfied that in all of the circumstances and having regard to the Full Bench decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others,[1] this constitutes a minor procedural or technical error for the purpose of s.188(2) of the Act, as it was just before 6 June 2023. Further, I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error.

1. The Commission also raised certain other concerns regarding the Agreement with the Employer, and as a result, the Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A.  Pursuant to s.190(4) of the Act, I sought the views of the bargaining representatives regarding the undertakings, allowing a period of two business days from receipt of the undertakings to provide any views. Two employee bargaining representatives have communicated that they each support the undertakings provided.

1. 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.  Pursuant to s.190 of the Act, I accept the undertakings.  In accordance with s.201(3) of the Act, I note that the undertakings are taken to be a term of the Agreement.

1. I indicated to the Employer of my view that the Agreement’s existing consultation term did not meet the requirements of s.205 of the Act, and that in the event of approval, the model consultation term will be inserted into the Agreement. Pursuant to s.205(2) of the Act, the model consultation term prescribed by Schedule 2.3 of the Regulations is attached to the Agreement and taken to be term of it.

1. I have taken into consideration the material filed in the Commission. Subject to the undertakings referred to above, 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. 

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 17 July 2023.  The nominal expiry date of the Agreement is 10 July 2027.

COMMISSIONER

Annexure A – Undertakings

[1] [2019] FWCFB 318.

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