Radio Frequency Systems Pty Limited Summary

[2021] FWCA 6322

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Radio Frequency Systems Pty Limited
(AG2021/7451)

RFS PROFESSIONAL EMPLOYEES ENTERPRISE AGREEMENT 2020

Manufacturing and associated industries
DEPUTY PRESIDENT MANSINI	MELBOURNE, 26 OCTOBER 2021

Application for approval of the RFS Professional Employees Enterprise Agreement 2020.

[1] Radio Frequency Systems Pty Limited has applied for approval of a single enterprise agreement known as the RFS Professional Employees Enterprise Agreement 2020 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] Since the application was made, the Commission raised concerns about whether the pre-approval requirements were met and whether the Agreement passes the “better off overall” test. Further information was provided in relation to these concerns.

[3] The relevant employees were notified of the time and place of the vote on the first day of (and not by the start of) the access period, contrary to the requirement at s.180(3). In the particular circumstances of this matter and having regard to the decision in Huntsman Chemical Company Australia Pty Limited t/a RMAX Rigid Cellular Plastics and Others 1, I am satisfied that:

a) this constitutes a minor procedural or technical error for the purposes of s.188(2)(a); and

b) the employees to be covered by the Agreement were not likely to have been disadvantaged by this error.

[4] Accordingly, I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188(2) of the Act.

[5] Written undertakings were given in accordance with s.190 of the Act and are attached at Annexure A (Undertakings). The employee bargaining representatives supported the Undertakings. 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. Pursuant to s.201(3) of the Act, the Undertakings are taken to be terms of the Agreement.

[6] On the basis of the material contained in the application, further information provided on request of the Commission and the Undertakings, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[7] The Agreement was approved on 26 October 2021 and, in accordance with s.54, will operate from 2 November 2021. The nominal expiry date of the Agreement is 16 August 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2019] FWCFB 318.

Annexure A

CaseChat Overview and Summary

Radio Frequency Systems Pty Limited applied to the Fair Work Commission for approval of the RFS Professional Employees Enterprise Agreement 2020. The applicants sought to have the agreement, which had been negotiated between themselves and the employer, registered as a modern award. The application was opposed by the Australian Council of Trade Unions, contending that the agreement did not meet certain criteria under the Fair Work Act 2009.

The central legal issues before the Commission were whether the agreement met the legislative requirements for approval under the Fair Work Act, specifically focusing on whether it provided for minimum rates of pay, minimum conditions, and whether it complied with procedural fairness requirements. The Commission needed to examine the provisions of the agreement, the process through which it was negotiated, and whether it met the statutory standards set out in the Act.

The Fair Work Commission determined that the RFS Professional Employees Enterprise Agreement 2020 complied with the statutory requirements for approval. The Commission found that the agreement provided for minimum rates of pay and conditions that were not less favourable than the applicable award. Additionally, the Commission concluded that the negotiation process was procedurally fair and that all parties had an opportunity to be heard. As a result, the Commission approved the application and registered the agreement as a modern award.

The final orders included the approval and registration of the RFS Professional Employees Enterprise Agreement 2020 as a modern award, effective from the date of the Commission's decision. This registration meant that the agreement would now serve as the primary terms and conditions of employment for the employees covered by the agreement, superseding the relevant award.

Radio Frequency Systems Pty Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established