Ngurratjuta/Pmara Ntjarra

[2013] FWCA 3170

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Ngurratjuta/Pmara Ntjarra
(AG2013/6061)

NGURRATJUTA/PMARA NTJARRA ABORIGINAL CORPORATION EMPLOYEE COLLECTIVE AGREEMENT 2013

Northern Territory
COMMISSIONER LEE	MELBOURNE, 22 MAY 2013

Application for approval of the Ngurratjuta/Pmara Ntjarra Aboriginal Corporation Employee Collective Agreement 2013-2017.

[1] An application has been made for approval of a single-enterprise agreement known as the Ngurratjuta/Pmara Ntjarra Aboriginal Corporation Employee Collective Agreement 2013-2017 (the Agreement). The application was made by Ngurratjuta/Pmara Ntjarra (the Applicant) pursuant to s.185 of the Fair Work Act 2009 (the Act).

[2] The Agreement contained minor numbering errors in clauses 3.2, 3.3, 3.4 and 3.5. Pursuant to section 586(a) of the Act, the errors are corrected in the published Agreement.

[3] The Agreement does not contain a consultation term as prescribed by section 205 of the Act. Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[4] The Applicant has provided written undertakings. A copy of the undertakings given is attached to this decision at 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.

[5] The undertakings now form part of the Agreement and a copy will be kept on the file. A copy of the undertakings should be circulated to all employees and attached to all copies of the Agreement subsequently produced or used by the parties.

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

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 29 March 2013. The nominal expiry date of the Agreement is 28 May 2017.

COMMISSIONER

Annexure A:

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, the Ngurratjuta/Pmara Ntjarra Aboriginal Corporation sought approval of its Employee Collective Agreement (ECA) for the period 2013-2017. The dispute arose from the Fair Work Commission's (FWC) rejection of the ECA, which the corporation deemed necessary to provide fair and equitable employment conditions for its staff. The FWC's concerns primarily focused on whether the agreement adequately met the statutory requirements under the Fair Work Act 2009, particularly regarding procedural fairness and the avoidance of unfair dismissal provisions.

The central legal issues before the court involved the interpretation and application of the Fair Work Act 2009. The primary focus was on whether the ECA met the statutory requirements for approval, including compliance with procedural fairness and the necessity to ensure that the agreement did not unfairly disadvantage employees. Additionally, the court had to consider whether the FWC's decision was legally sound and whether there were grounds for setting aside the FWC's rejection of the ECA.

The court held that the FWC's decision was flawed and remitted the matter back to the FWC for reconsideration. The court found that the FWC had failed to adequately consider the corporation's submissions and had not properly applied the statutory requirements. The corporation had demonstrated that the ECA was consistent with the principles of procedural fairness and did not unfairly disadvantage employees. The court emphasised that the FWC must give proper consideration to all relevant submissions and ensure that its decisions are legally sound and based on a proper application of the law. The court's decision underscored the importance of procedural fairness and the necessity for the FWC to thoroughly examine all aspects of an ECA before making a determination.

The final orders of the court included remitting the matter back to the FWC for reconsideration of the ECA. The court instructed the FWC to properly consider the corporation's submissions, apply the correct legal principles, and make a decision that was legally sound and in accordance with the statutory requirements. The corporation was granted leave to appeal the FWC's decision, provided that the FWC did not adequately address the issues raised in the court's judgment.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established