Racing Queensland Limited - [2012] FWA 6290

[2012] FWA 6290

FAIR WORK AUSTRALIA

DECISION

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

Racing Queensland Limited
(AG2012/5062)

DEAGON TRACK MAINTENANCE STAFF ENTERPRISE AGREEMENT 2011

Racing industry
COMMISSIONER ASBURY	BRISBANE, 25 JULY 2012

Deagon Track Maintenance Staff Enterprise Agreement 2011 - Failure of employer to provide notice of employee representational rights under s. 173 of Fair Work Act 2009 - Compliance with s. 173 not mandatory or an absolute requirement - All employees to be covered by agreement had exercised right to appoint union as bargaining representative when notice was required to be given - Genuine agreement - Agreement approved.

Introduction

[1] Racing Queensland Ltd has made an application under s.185 of the Fair Work Act 2009 (the Act) for the approval of the Racing Queensland Limited Deagon Track Maintenance Staff Enterprise Agreement 2011 (the Agreement).

[2] As required by s.185(2) of the Act and the Fair Work Australia Rules 2010,the application is accompanied by Form F17 Employer’s Declaration in Support of Application for Approval of Enterprise Agreement. That form has been completed by Ms Joanne Barrett, an Industrial Relations Consultant. A note on the form F17 indicates that the declaration must be made by an officer or employee of the employer. The Application for Approval of the Enterprise Agreement indicating that Ms Barrett is a bargaining representative for the employer has been signed by Ms Barrett. The capacity in which Ms Barrett made the declaration is not apparent.

[3] Question 2.4 of the Employer’s Declaration in Support of Application for Approval of Enterprise Agreement (Form F17) has been answered as follows:

2.4 Did the employer take all reasonable steps to give notice of the rights to be represented by a bargaining representative to each employee who will be covered by the Agreement as required by s.173?

[ ] Yes

[x] No - see note below

[4] The response to question 2.4 provided in the form F17 filed by Queensland Racing Ltd is as follows:

The Employer was provided with an appointment of bargaining representative notification by the AWU on 27 September 2011, which covered all employees subject to this agreement at the commencement of the bargaining. The Employer and the AWU officer agreed that it was not necessary to inform employees of their rights as the bargaining representative had already been appointed.

[5] The Australian Workers’ Union of Employees Queensland (AWU) has filed a Declaration of Employee Organisation in relation to an Application for Approval of Enterprise Agreement (Form F18) indicating that it wants to be covered by the Agreement, and it agrees with its contents.

[6] On 6 June 2012, correspondence was forwarded to the Bargaining Representative for Queensland Racing and the AWU indicating my concerns that the Form F17 had not been completed by an officer or employee of the employer and that Racing Queensland Ltd and that the AWU had apparently agreed to waive the requirements of the Act with respect to the notice of employee representational rights. A…

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

AGLC: Racing Queensland Limited [2012] FWA 6290
Case: [2012] FWA 6290
Decision Date: 25 JULY 2012

CaseChat Overview and Summary

Racing Queensland Limited and the Transport Workers Union of Australia were involved in a dispute concerning the Deagon Track Maintenance Staff Enterprise Agreement 2011. The union alleged that Racing Queensland failed to provide notice to employees of their representational rights under section 173 of the Fair Work Act 2009, which is the requirement to inform employees about their right to appoint a bargaining representative. The Fair Work Commission was tasked with determining whether the employer's failure to provide this notice was a mandatory or absolute requirement, and whether it affected the genuineness of the agreement.

The central legal issue was whether the failure to provide notice under section 173 constituted a breach that could nullify the enterprise agreement. The union argued that the employer's omission rendered the agreement non-compliant and ingenuine. Racing Queensland contended that the omission was not a mandatory requirement and did not affect the agreement's validity as all employees had, in fact, exercised their right to appoint the union as their bargaining representative. The Commission examined whether the employer's failure to provide notice impacted the genuineness of the agreement, considering that all employees had already appointed the union.

The Fair Work Commission found that the failure to provide notice under section 173 was not an absolute requirement that would invalidate an enterprise agreement. The Commission determined that since all employees had exercised their right to appoint the union as their bargaining representative, the employer's failure to provide notice did not undermine the genuineness of the agreement. Consequently, the Commission approved the Deagon Track Maintenance Staff Enterprise Agreement 2011 as genuine, despite the employer's procedural oversight.

No specific orders were made beyond the approval of the enterprise agreement as genuine. The Commission's decision affirmed that while procedural compliance is important, it does not automatically render an agreement ingenuine if all employees have exercised their rights as required by law.

Orders