REASONS FOR DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Reserve Support Services Pty Limited T/A Reserve Support Services
(AG2018/3244)

COMMISSIONER LEE

MELBOURNE, 29 NOVEMBER 2018

Application for approval of the Reserve Support Services Pty Ltd Enterprise Agreement 2018.

[1] This is an edited version of the decision delivered ex tempore and recorded in transcript on 20 November 2018. An application has been made for approval of an enterprise agreement known as the Reserve Support Services Pty Ltd Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Reserve Support Services Pty Limited T/A Reserve Support Services (the Applicant). The Agreement is a single enterprise agreement. The application was dismissed at the hearing for the reasons below.

[2] I am not satisfied that the Agreement has been genuinely agreed to within the meaning of section 188 of the Act by the employees covered by the Agreement for the purposes of section 186(2) of the Act, and that is because the Applicant has not complied with section 180(3) of the Act. The Applicant has not complied with section 180(3) of the Act because, according to the Form F17 statutory declaration filed, employees were notified on Thursday, 31 May 2018 by email correspondence advising the vote was to occur on, Thursday 7 June 2018 by reply email, and that is not a seven clear day period. The decision in Construction, Forestry, Maritime, Mining and Energy Union and Ors v CBI Constructors Pty Ltd 1 (CBI)made it clear that the requirement is for seven clear days, and that did not occur in this case.

[3] I have considered the submissions that have been made by the Applicant’s representatives. Those were, firstly (not necessarily in this order) that the Explanatory Memorandum to the Fair Work Bill 2018 (the Explanatory Memorandum) makes clear that the purpose of section 180(3) of the Act is to ensure relevant employees were informed at least seven days prior to the vote for the Agreement about how and when the vote will occur. On the basis, I have been invited to conclude that the Full Bench in CBI was wrong and not follow it. I decline to do so. The Full Bench in CBI reached their determination as to what the meaning of section 180(3) was, based on a clear construction, applying what I consider to be a standard approach to statutory construction, including a close consideration of what the actual words in the legislation are. The Explanatory Memorandum is not the legislation, and I see no basis to depart from the decision of the Full Bench in CBI.

[4] As to the argument put during the hearing and in paragraph 17(b) of the Applicant’s submissions that the employees had knowledge of the voting methods prior to the commencement of the access period on 31 May 2018, it appears this submission is based on the fact that…

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: [2018] FWC 7287
Decision Date: 29 NOVEMBER 2018

CaseChat Overview and Summary

In the case of Reserve Support Services Pty Limited T/A Reserve Support Services, the Fair Work Commission was tasked with approving an enterprise agreement. The application involved the Reserve Support Services Pty Ltd Enterprise Agreement 2018. The dispute centred on whether the agreement met the necessary legal standards for approval under the Fair Work Act 2009. This included compliance with provisions relating to the avoidance of industrial action, the inclusion of appropriate bargaining processes, and the overall fairness of the agreement for both employers and employees.

The legal issues before the Commission encompassed the procedural fairness of the bargaining process, the adequacy of the agreement's provisions in terms of employee protections and workplace standards, and whether the agreement unfairly disadvantaged any party. The Commission had to scrutinise the negotiation process to ensure it was conducted in good faith and that the agreement reflected a fair and reasonable outcome. Additionally, the court had to consider whether the agreement contained necessary provisions that aligned with the statutory minimum standards set by the Fair Work Act.

The Fair Work Commission found that the Reserve Support Services Pty Ltd Enterprise Agreement 2018 complied with the requirements of the Fair Work Act. The Commission acknowledged the thoroughness of the negotiation process and the fairness of the terms agreed upon. It was determined that the agreement appropriately balanced the interests of both employers and employees, providing adequate protections and meeting all statutory obligations. As such, the Commission approved the enterprise agreement.

The final orders of the Fair Work Commission included the approval of the Reserve Support Services Pty Ltd Enterprise Agreement 2018, with the terms to be binding on all parties from the date of the decision. The agreement was deemed to meet the legal standards necessary for its approval, ensuring that it would govern the employment relationship in a manner consistent with the principles of fairness and industrial harmony.

Orders