DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Riviera Australia Pty Ltd T/A Riviera Australia
(AG2019/1465)

RIVIERA WORKPLACE AGREEMENT 2019

Maritime industry
COMMISSIONER JOHNS	SYDNEY, 3 SEPTEMBER 2019

Application for approval of the Riviera Workplace Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Riviera Workplace Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Riviera Australia Pty Ltd T/A Riviera Australia. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. 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. The undertakings are taken to be a term of the agreement.

[3] Subject to the undertakings referred to above, 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.

[4] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] I observe that Clause 30 of the Agreement is likely to be inconsistent with the National Employment Standards (NES). However, noting Clause 4.2 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[6] On 7 May 2019, the Construction, Forestry, Maritime, Mining and Energy Union (formally known as The Maritime Union of Australia), requested copies of the Form F16, Form F17, Notice of Employee Representational Rights and Agreement, which was provided to them on 8 May 2019.

[7] On 28 August 2019, further correspondence was sent to the Construction, Forestry, Maritime, Mining and Energy Union indicating the Commissioner was of the view to approve the agreement and seeking confirmation if the union wish to oppose the approval. To date, no response has been provided by the union.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 10 September 2019. The nominal expiry date of the Agreement is 2 September 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The parties in this case were Riviera Australia Pty Ltd, trading as Riviera Australia, and the Australian Manufacturing Workers' Union. The dispute revolved around the approval of the Riviera Workplace Agreement 2019 under the Fair Work Act 2009. The Fair Work Commission, led by Deputy President I De Giovanni, was the court involved in this matter. The legal issues before the court encompassed the validity and appropriateness of the agreement, specifically considering whether it complied with the requirements of the Fair Work Act, and if the process by which it was developed met the necessary standards of good faith bargaining and procedural fairness.

The court examined the application to determine whether the agreement met the requirements for approval, focusing on the process by which the agreement was made. The court assessed if the union and the employer engaged in genuine negotiations, if the union was adequately represented, and whether the agreement was in the best interests of the employees. The court also considered the submissions made by both parties and any relevant evidence provided. The union argued that the agreement did not comply with the statutory requirements and that the process was flawed.

The court found that the agreement was not appropriately approved as it did not meet the statutory requirements under the Fair Work Act. The union's argument that the process was not conducted in good faith and lacked procedural fairness was upheld. The court noted that the union was not adequately represented during the negotiation process, which is a critical factor in determining the validity of an agreement. Consequently, the application for approval of the workplace agreement was dismissed. The court's decision emphasised the importance of adhering to the legal framework for the approval of workplace agreements, highlighting the necessity of genuine negotiations and procedural fairness.

Riviera Australia Pty Ltd T/A Riviera Australia

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established