Northern Territory Commissioner for Public Employment & Speaker of the Legislative Assembly of the Northern Territoryv“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the...

[2022] FWCFB 21

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604—Appeal of decision

Northern Territory Commissioner for Public Employment & Speaker of the Legislative Assembly of the Northern Territory
v

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union and others

(C2022/1281)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 4 MARCH 2022

Appeal against decision [2022] FWCA 243 of Deputy President Dean on 31 January 2022 in matter AG2021/9381

The Northern Territory Public Sector 2021 – 2025 Enterprise Agreement was approved by Deputy President Dean on 31 January 2022.[1] The Northern Territory Commissioner for Public Employment and the Speaker of the Legislative Assembly of the Northern Territory have applied for permission to appeal, and if granted appeal that decision. There are nine bargaining representatives for the proposed agreement (eight registered organisations and an individual) who are respondents to the appeal. The appeal is brought on the ground that the purported agreement that was approved by the Deputy President was never made under s 182(1) of the Fair Work Act 2009 (Act) and, accordingly, was not capable of approval under s 186. This is because a different agreement was made by employees employed at the time, but that agreement did not accompany the application for approval. Instead, the purported agreement was mistakenly lodged with the application.

The relevant factual background is set out in an affidavit sworn by Ms Cheryl Winstanley the Employee Relations Director of the first appellant and is not in dispute. Briefly, bargaining for an enterprise agreement that would replace the then operative agreement commenced in March 2021. Since the time bargaining commenced and until the making of the agreement the bargaining parties held 33 bargaining meetings.

The access period for the proposed agreement commenced on 29 November 2021 and on that day, a document – the proposed agreement – was published on the first appellant’s webpage. Email communication attaching the proposed agreement was sent also to employees and the union bargaining representatives. Following publication, but still on 29 November 2021, the first appellant proposed a sub-clause be added to the proposed agreement to provide additional clarification of the application of the new Christmas leave entitlement for which the proposed agreement provided. Sub-clause 90.3(c) was added to the proposed agreement with existing sub-clauses 90.3(c)-(g) renumbered as 90.3(d)-(h) respectively, and the amended proposed agreement was published on the first appellant’s webpage and sent by email to employees and the union bargaining representatives.

Employees who would be covered by the amended proposed agreement were informed that they would be asked to vote to approve that agreement. Voting for the amended proposed agreement commenced on 8 December 2021 and concluded on17 December 2021.

The amended proposed agreement was approved by a majority of relevant employees who cast a valid vote with 57.4 per cent voting in favour of its approval. Pursuant to ss 185(1) and (3)(a), unless time is extended, a bargaining representative for the agreement must apply to the Commission for its approval within 14 days after it is made. The last day this could be done was 31 December 2021.

As events transpired the purported agreement that was signed and subsequently filed with the application for approval in accordance with s 185(2) of the Act was not the agreement made on 17 December 2021 but an earlier iteration which did not contain the subsequent amendments on 29 November 2021. The error was not discovered until 7 February 2022 by which time the purported agreement had been approved and had commenced operation. Subsequently on 11 February 2022, Ms Winstanley brought the erroneous lodgement to the attention of the Deputy President and sought a correction to the decision which would have required a variation to the decision. The Deputy President correctly advised Ms Winstanley that a variation to the decision was not possible. Similarly, the decision to approve the erroneously lodged agreement could not by cured under s 602(1).

This appeal can, in our opinion, be adequately determined without persons making oral submissions, and the persons who would otherwise have made submissions in the appeal (the appellants and the respondent bargaining representatives) consent to the appeal being determined without a hearing.

Plainly, on the undisputed facts, the purported agreement approved by the Deputy President was not made in accordance with s 182(1) of the Act. Accordingly, that agreement was incapable of approval under s 186. In the circumstances it is appropriate to grant permission to appeal, and we uphold the appeal and quash the decision.

Order

We order as follows:

(1)Permission to appeal is granted.

(2)The appeal is upheld.

(3)The decision of Deputy President Dean of 31 January 2022 in matter number AG2021/9381 ([2022] FWCA 243) is quashed.

DEPUTY PRESIDENT

[1] [2022] FWCA 243

Printed by authority of the Commonwealth Government Printer

The case before the Fair Work Commission involved an appeal by the Northern Territory Commissioner for Public Employment and the Speaker of the Legislative Assembly of the Northern Territory against the approval of the Northern Territory Public Sector 2021 – 2025 Enterprise Agreement. The respondents to the appeal were nine bargaining representatives for the proposed agreement, consisting of eight registered organisations and one individual. The appellants sought to challenge the approval of the agreement on the basis that it was not made in accordance with section 182(1) of the Fair Work Act 2009 and, therefore, could not be approved under section 186 of the Act. Specifically, the appellants argued that the agreement approved by the Deputy President was not the agreement made by the employees on 17 December 2021, but rather an earlier iteration of the agreement that did not include the amendments made on 29 November 2021.

The legal issue before the Commission was whether the approval of the agreement by the Deputy President was valid, given that the agreement approved was not the one that had been made by the employees. The Commission noted that the relevant facts were not in dispute and that the error in the agreement was not discovered until 7 February 2022, after the agreement had been approved and had commenced operation. The Commission also noted that the appellants had sought to correct the error by seeking a variation to the decision, but that the Deputy President had correctly advised that a variation was not possible. The Commission concluded that the error in the agreement rendered it incapable of approval under the Act and that it was appropriate to grant permission to appeal and to uphold the appeal.

In light of the above, the Commission ordered that permission to appeal be granted, that the appeal be upheld, and that the decision of the Deputy President be quashed. The Commission emphasised that the error in the agreement was significant and that it had the effect of rendering the agreement incapable of approval under the Act. The Commission also noted that the error was not the result of any misconduct or bad faith on the part of the appellants or any of the bargaining representatives. The decision of the Commission serves as an important reminder of the importance of ensuring that enterprise agreements are made in accordance with the relevant provisions of the Fair Work Act 2009 and that any errors in the agreement are identified and corrected as soon as possible.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established