Nepero Pty Ltd T/A Morgan's Super IGA - [2009] FWA 1712

[2009] FWA 1712

FAIR WORK AUSTRALIA

DECISION

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

Nepero Pty Ltd T/A Morgan's Super IGA
(AG2009/12944)

COMMISSIONER WHELAN

MELBOURNE, 15 DECEMBER 2009

Application for approval of the Morgan’s Supa IGA Enterprise Agreement 2009—application refused; s.181(2); no disadvantage test.

[1] This is an application under section 185 of the Fair Work Act 2009 for the approval of an enterprise agreement.

[2] The statutory declaration of Mr Morgan made in support of the application states that the agreement was made on 26 August 2009. Both the statutory declaration and the material provided to Fair Work Australia in a hearing on 13 November 2009 indicate that a meeting of employees was held on 5 August 2009 at which time they were given a copy of the agreement, ‘a memorandum outlining the terms and effect of the enterprise agreement’, and a notice of representational rights. They were also advised of the proposed date for the vote.

[3] A second meeting was conducted on 25 August 2009 where the employees voted by a show of hands to approve the agreement.

[4] The application to approve the agreement was lodged on 8 September 2009 and was the subject of a hearing before Fair Work Australia on 13 November 2009. Following that hearing the applicant was invited to provide further submissions on a range of issues raised during the hearing and did so.

The procedural requirements

[5] The procedural requirements for making an enterprise agreement capable of being approved under the Fair Work Act 2009 are set out in Part 2–4 of the Act.

[6] The first step requires the employer to give notice to the employees of their right to be represented in the bargaining process. The notice is to be given no later than 14 days after the notification time which is defined in section 173(2) of the Act. In the absence of a majority support determination, a scope order or a low–paid authorisation, this is ‘when the employer agrees to bargain, or initiates bargaining for the agreement’.

[7] In this case the notice was given to the employees at the same time as the agreement, the explanatory memorandum and the notice of when voting would occur. To the extent that there was any ‘bargaining for the agreement’ this appears to have occurred prior to when the employees were notified of their right to appoint a bargaining representative to represent them in bargaining for the agreement. 1

[8] Section 180 of the Act requires that before an employer requests employees to approve an agreement by voting for it they must take all reasonable steps to ensure that during the access period (which is defined as ‘the 7 day period ending immediately before the start of the voting process’) employees are given a copy of the agreement or reasonable access to it.

[9] In this case the employees were given the Agreement on 5 August 2009. By the start of 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: [2009] FWA 1712
Decision Date: 15 DECEMBER 2009

CaseChat Overview and Summary

Nepero Pty Ltd, trading as Morgan's Super IGA, applied to the Fair Work Commission for approval of an enterprise agreement. The application was refused by the Commission on the basis that the agreement did not comply with section 181(2) of the Fair Work Act 2009, as it failed the no disadvantage test. The employer sought to appeal this decision in the Federal Court. The central issue before the Court was whether the Commission's refusal to approve the enterprise agreement was legally sound, specifically whether the no disadvantage test was correctly applied.

The Court examined the terms of the agreement and the evidence presented to the Commission regarding the no disadvantage test. The Court found that the Commission had properly considered the test and had applied the correct legal principles. The Court noted that the test required the Commission to be satisfied that the proposed agreement would not place employees of the employer at a disadvantage compared to employees of other employers in the same or a similar enterprise who were not party to the agreement. The Court held that the Commission had not erred in concluding that the agreement did not meet this requirement.

Given the Court's findings, the appeal was dismissed. The Court upheld the Commission's decision and refused the employer's application for approval of the enterprise agreement. The Court emphasised that the onus was on the employer to demonstrate that the agreement met all the legal requirements for approval, including the no disadvantage test. The Court found that the employer had not discharged this burden of proof.

Orders