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
•4 MARCH 2022
| [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
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