DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Safeworking Solutions Pty Ltd
(AG2020/3240)

SAFEWORKING SOLUTIONS PTY LTD ENTERPRISE AGREEMENT 2020

Rail industry
DEPUTY PRESIDENT MANSINI	MELBOURNE, 8 MARCH 2021

Application for approval of the Safeworking Solutions Pty Ltd Enterprise Agreement 2020.

[1] This is a decision to approve a single enterprise agreement known as the Safeworking Solutions Pty Ltd Enterprise Agreement 2020 (Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The reasons for this decision follow, arranged as:

Overview	at [2] to [9]
Statutory framework	at [10] to [20]
The access period	at [21] to [25]
The SMS ballot	at [26] to [38]
“False and misleading” representations	at [39] to [54]
The Notice	at [55] to [60]
The NES	at [61] to [62]
The “better off overall” test	at [63] to [65]
Conclusion - the Agreement is approved	at [66] to [68]

Overview

[2] The application identified that the Agreement was approved by a majority of employees. By the amended application, 176 of 226 employees cast a valid vote - a 78% participation rate. And, of those, 118 employees voted to approve the Agreement.

[3] In support of its application, Safeworking Solutions filed a declaration and amended declaration of Mr James (Jim) Talbot, Managing Director of Safeworking Solutions, and a total of seven witness statements, of:

• Ms Theresa Moltoni, Managing Legal Practitioner Director of IRIQ Pty Ltd t/a IRIQ Law and appointed bargaining representative of Safeworking Solutions;

• Mr Faiyaz Devjee, Balloting Returns Officer at IRIQ Pty Ltd;

• Mr James (Jim) Talbot, Managing Director of Safeworking Solutions;

• Mr Jamie Talbot, Human Resources Manager of Safeworking Solutions; and

• Ms Justine Young, Administration Manager of Safeworking Solutions.

[4] The Australian Rail, Tram and Bus Industry Union (RTBU), in its role as a bargaining representative, filed a declaration that it opposed the approval of the Agreement but wished to be covered in the event it was approved by the Commission. In support of its opposition, the RTBU filed a total of three witness statements, of:

• Ms Alice Dunn, Industrial Officer of the RTBU; and

• Subject to a confidentiality order, with confidential information redacted, an employee of Safeworking Solutions.

[5] Various submissions were filed during the course of the proceedings.

[6] Also during the course of the proceedings, the RTBU sought production of various documents. This was initially opposed but ultimately a bundle of documents was produced by consent of Safeworking Solutions. The bundle of documents was provided to the Commission in full, and to the RTBU with certain confidential information redacted, subject to a confidentiality order. 1 Following the Commission’s inspection of the bundle of documents, further information was provided to the union by consent and subject to a further confidentiality order.2 That exercise led to the resolution of some approval issues.3

[7] The RTBU was critical of the employer’s evidence, in that it was not forthcoming about some important matters in its initial declaration – for example,…

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: Safeworking Solutions Pty Ltd [2021] FWCA 1240
Case: [2021] FWCA 1240
Decision Date: 8 MARCH 2021

CaseChat Overview and Summary

Safeworking Solutions Pty Ltd was the subject of an application for the approval of the Safeworking Solutions Pty Ltd Enterprise Agreement 2020, heard in the Fair Work Commission. The applicant, Safeworking Solutions, sought to have the enterprise agreement approved under the Fair Work Act 2009. The dispute arose as the applicant and the respondents, represented by the Rail, Tram and Bus Industry Union, were unable to reach an agreement on the terms of the enterprise agreement.

The legal issues before the Fair Work Commission included whether the proposed agreement met the requirements of the Fair Work Act 2009, particularly in relation to the "better off overall test" (BOOT). This test required the Commission to determine whether employees would be better off overall with the agreement than without it. Additionally, the Commission needed to ensure that the agreement was fairly negotiated and met other statutory requirements, such as the provision of minimum entitlements and procedural fairness.

In evaluating the agreement, the Commission considered various factors, including the financial implications for employees, the negotiation process, and compliance with legislative standards. The Commission determined that the agreement satisfied the BOOT, as it provided a range of benefits to employees that outweighed any detriments. The negotiation process was found to be procedurally fair, and the agreement met all statutory requirements. Consequently, the Fair Work Commission approved the Safeworking Solutions Pty Ltd Enterprise Agreement 2020.

The Fair Work Commission's approval of the enterprise agreement was issued, allowing it to come into effect and bind both the applicant and the respondents. This decision provided certainty and stability to the employment relationship between Safeworking Solutions and its employees, ensuring that the agreement would operate effectively within the legal framework established by the Fair Work Act 2009.

Orders