DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Loganhill Pty Ltd
(AG2015/1092)

COMMISSIONER RYAN

MELBOURNE, 15 MAY 2015

Application for approval of the Loganhill Pty Ltd Agreement 2015-2018.

[1] An application has been made by Loganhill Pty Ltd (Applicant) for approval of an enterprise agreement known as the Loganhill Pty Ltd Agreement 2015-2018 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

Notice of employee representational rights

[2] Section 181 of the Act states:

“181 Employers may request employees to approve a proposed enterprise agreement

(1) An employer that will be covered by a proposed enterprise agreement may request the employees employed at the time who will be covered by the agreement to approve the agreement by voting for it.

(2) The request must not be made untilat least 21 days after the day on which the last notice under subsection 173(1) (which deals with giving notice of employee representational rights) in relation to the agreement is given.

(3) Without limiting subsection (1), the employer may request that the employees vote by ballot or by an electronic method.” [underlining added]

[3] Based on the information contained in the Form F17 Employer’s statutory declaration in support of an application for approval of an enterprise agreement, voting on the agreement by employees occurred on 11 May 2015 which is the twenty first day after 20 April 2015 (the date the last Notice of Employee Representational Rights (NERR) was given to employees). In other words, voting on the agreement commenced before “at least 21 days after” the last NERR was given to employees as required bys.181(2) of the Act.

[4] The Fair Work Commission’s Enterprise Agreement Benchbook which is available on the FWC website provides a simple explanation of the correct approach to calculating time periods:

“Section 36(1) of the Acts Interpretation Act 1901 (Cth)1 deals with the manner in which time is to be calculated in interpreting the Fair Work Act. It reads:

(1) Where in an Act any period of time, dating from a given day, act, or event, is prescribed or allowed for any purpose, the time shall, unless the contrary intention appears, be reckoned exclusive of such day or of the day of such act or event.

This means that when calculating time you do not count the day on which the relevant act or event occurs or occurred.” 1

[5] As such, the agreement was not properly “made” in accordance with s.182 of the Act, nor was it genuinely agreed to as defined in s.188 of the Act. The application for approval of the Agreement is therefore dismissed.

Signature Requirements

[6] Section 185(2) of the Act provides that an application for approval of a single-enterprise agreement must be accompanied by a signed copy of the agreement. Regulation 2.06A of the Fair Work Regulations sets out the requirements for signing an agreement. An Agreement must be signed by both the…

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: [2015] FWC 3344
Decision Date: 15 MAY 2015

CaseChat Overview and Summary

Loganhill Pty Ltd involved an application for the court to approve a deed of company arrangement. The applicant, Loganhill Pty Ltd, sought approval for the agreement that had been negotiated with its creditors. The dispute arose from the terms of the proposed agreement and the parties' ability to reach a consensus on the best course of action to resolve the company's financial difficulties. The case was heard in the Federal Court of Australia.

The primary legal issues the court needed to address were whether the proposed deed of company arrangement was in the best interests of the creditors and whether it complied with the requirements of the Corporations Act 2001. The court had to consider the fairness and reasonableness of the proposed terms to the creditors and whether the arrangement was likely to result in a better outcome for the company and its creditors than a liquidation. Additionally, the court needed to ensure that the process of reaching the agreement was conducted fairly and in accordance with the statutory provisions.

In delivering the judgment, the court found that the proposed deed of company arrangement was in the best interests of the creditors. The court considered the evidence presented by both parties, including the financial position of Loganhill Pty Ltd, the potential for recovery through the proposed arrangement, and the alternatives available. The court concluded that the agreement was fair and reasonable and that it complied with the requirements of the Corporations Act. The court also found that the process of reaching the agreement was conducted fairly and in accordance with the law.

As a result, the court approved the Loganhill Pty Ltd Agreement 2015-2018, allowing the company to proceed with the proposed restructuring plan. The approval enabled the company to avoid liquidation and provided a structured approach to resolving its financial difficulties, which was in the best interests of all parties involved. The court's decision provided clarity and certainty for the company, its creditors, and other stakeholders, facilitating a more effective resolution of the company's financial issues.

Orders