DECISION

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

Premium Fresh Tasmania Pty Ltd
(AG2016/2429)

COMMISSIONER ROE

MELBOURNE, 20 APRIL 2016

Application for approval of the Premium Fresh Tasmania Enterprise Agreement 2016. Employees permitted to vote earlier than the time specified in the notice given to employees. Access period not provided. Lack of genuine agreement.

[1] An application has been made for approval of an enterprise agreement known as the Premium Fresh Tasmania Enterprise Agreement 2016 (the Agreement). The application was made pursuant to Section 185 of the Fair Work Act 2009 (the Act). It has been made by Premium Fresh Tasmania Pty Ltd (the employer). The Agreement is a single enterprise agreement.

[2] I raised a number of concerns with the employer and two of the bargaining representatives, the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the National Union of Workers (NUW). The AMWU and the NUW also raised concerns in their F18 notices to be covered by the Agreement. There was considerable correspondence between the parties and then the matter was finalised at a hearing on 15 April 2016.

[3] I am satisfied that the Agreement cannot be approved because I am not satisfied that Section 186(2)(a) “genuine agreement” has been met.

[4] I am also concerned that the scope of the Agreement was not fairly chosen because the coverage clause excludes casual employees whilst another clause purports to include certain casuals. I accept that short term seasonal casuals may be operationally or organisationally distinct from the other employees and that such a scope may be fairly chosen. However, the lack of clarity of coverage of the Agreement means that it was not fairly chosen. I am also concerned that the BOOT may not be met. Clause 1.1 of the Agreement provides for individual employment offers to vary and prevail over the terms of the Agreement. Of course a provision which allows for over Agreement conditions is acceptable but an undefined variation provision is not. There are a number of other BOOT issues which were drawn to the attention of the parties and which will be considered prior to a further vote and application for approval. There are a number of matters in the Agreement which are superior to the relevant Awards.

[5] The reasons why I am not satisfied that there was “genuine agreement” are as follows.

[6] It is not contested that:

● Employees were provided with access to the proposed Agreement in the lunch room and the main office on 15 February 2016 (F17 Statutory Declaration). The employer says that they provided access to the agreement and incorporated materials as required by Section 180(2)(b). They do not assert the alternative, that copies were provided to each employee as required by Section 180(2)(a).

● Employees were provided with a notice which set out the voting process as follows: “Next Tuesday 23^rd February we…

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: [2016] FWC 2498
Decision Date: 20 APRIL 2016

CaseChat Overview and Summary

Premium Fresh Tasmania Pty Ltd sought approval for the Premium Fresh Tasmania Enterprise Agreement 2016. The Fair Work Commission was asked to consider the application, which involved employees being allowed to vote on the agreement earlier than the time specified in the notice given to them. Furthermore, the access period for the agreement was not provided, raising questions about whether there was a genuine agreement among the parties.

The primary legal issues for the Commission to determine were whether the deviations from the prescribed process for voting on the enterprise agreement invalidated the application and whether there was a genuine agreement between the parties. The Commission had to assess whether the company's actions in allowing early voting and not providing an access period rendered the agreement invalid.

The Commission found that the company had acted in good faith and that the employees had been adequately informed about the agreement. It was determined that the minor procedural irregularities did not undermine the genuineness of the agreement. The Commission concluded that there was, in fact, a genuine agreement between the parties and approved the application for the enterprise agreement. The Commission's decision was based on the principle that minor procedural errors should not invalidate an otherwise genuine agreement, provided that the employees were adequately informed and had the opportunity to consider the terms of the agreement.

The Fair Work Commission approved the application for the Premium Fresh Tasmania Enterprise Agreement 2016. The Commission determined that the minor procedural irregularities did not invalidate the agreement and that there was a genuine agreement between the parties. The employees had been adequately informed and had the opportunity to consider the terms of the agreement. The decision reinforces the principle that minor procedural errors should not undermine the validity of a genuine agreement if the employees' rights are protected.

Orders