Sky Channel Pty Ltd

[2014] FWC 3613

[2014] FWC 3613

FAIR WORK COMMISSION

DECISION

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

Sky Channel Pty Ltd
(AG2014/5685)

COMMISSIONER CAMBRIDGE SYDNEY, 30 MAY 2014

Application for approval of the Sky Channel Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Sky Channel Enterprise Agreement 2014(the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Sky Channel Pty Ltd and 2KY Broadcasters Pty Ltd (the Employers). The Agreement is a single-enterprise agreement.

[2] The application was lodged at Sydney on 11 April 2014. The application included a Statutory Declaration of Kathleen Brown made on behalf of the Employers and dated 11 April 2014 (the Declaration). The Declaration stated that the Agreement was made on 31 March 2014. Therefore the application was made within the 14 day lodgement time limit established by subsection 185 (3) of the Act.

[3] On 16 April 2014, a Statutory Declaration of Jonathan David Walters was made on behalf of the CPSU, the Community and Public Sector Union (the CPSU), as an employee organisation in relation to the application. This Statutory Declaration is referred to as the CPSU Declaration. In brief, the CPSU Declaration raised contest with various matters referred to in the Declaration and in effect, challenged both aspects of the terms of the Agreement and the process which involved the making of the Agreement.

[4] Also on 16 April 2014, a Statutory Declaration of Matthew Chesher was made on behalf of the Media, Entertainment and Arts Alliance (the MEAA), as an employee organisation in relation to the application. This Statutory Declaration is referred to as the MEAA Declaration. In brief, the MEAA Declaration raised contest with various matters referred to in the Declaration and in effect, challenged both aspects of the terms of the Agreement and the process which involved the making of the Agreement.

[5] In view of the challenges raised in the CPSU Declaration and the MEAA Declaration, the matter was listed for Mention and Directions before the Fair Work Commission (the Commission) on 5 May 2014. Notwithstanding the issues raised by the CPSU and the MEAA, the Commission identified concern with the Agreement’s apparent non-compliance with the signature requirements established under subsections 185(2) and 185(5) of the Act. In respect to the issue of the signature requirements of agreements, the Parties were referred to a Decision of Kovacic DP in Malteurop Australia Pty Ltd [2014] FWC 2476 (Malteurop).

[6] The Parties were asked to provide submissions and any other material in respect to the signature requirement issue and an opportunity to be heard in respect to this issue was arranged for 29 May 2014. A Hearing regarding the signature requirement issue was held on 29 May, at which time the following appearances were recorded:

Ms L Mummé solicitor, appeared for the Employers,

Mr M Chesher appeared for the MEAA, and

Mr K Barnes appeared for the CPSU.

[7] The Commission has considered the competing submissions of the Parties made in respect to the signature requirement issue. A significant aspect of the consideration has focussed upon whether the Commission has power pursuant to s.586 of the Act, to allow a correction or amendment to the Agreement. The correction would involve the Commission accepting a replacement page 20 of the Agreement so as to rectify the absence of any explanation of the authority by which it was signed on behalf of employees. Ms Mummé on behalf of the Employers, submitted that s.586 of the Act provided the relevant power to redress the signature requirement deficiency and she referred to a Full Bench Decision in Mr Peter Mihajlovic v Lifeline Macarthur[2014] FWCFB 1070 (Mihajlovic), as support for this proposition.

[8] Part 2-4 of the Act includes various procedural requirements which must be satisfied before the Commission can approve of an enterprise agreement. One of these procedural requirements is specified by combination of subsections 185(2) and 185 (5) of the Act and Regulation 2.06A of the Fair Work Regulations 2009, these provisions relevantly state:

“185 Bargaining representative must apply for the FWC’s approval of an enterprise agreement

Application for approval

(1) If an enterprise agreement is made, a bargaining representative for the agreement must apply to the FWC for approval of the agreement.

(1A) Despite subsection (1), if the agreement is a greenfields agreement, the application must be made by:

(a) an employer covered by the agreement; or

(b) a relevant employee organisation that is covered by the agreement.

Material to accompany the application

(2) The application must be accompanied by:

(a) a signed copy of the agreement; and

(b) any declarations that are required by the procedural rules to accompany the application.

...

Signature requirements

(5) The regulations may prescribe requirements relating to the signing of enterprise agreements.”

and

“2.06A Bargaining representative must apply for FWC approval of an enterprise agreement—requirements for signing agreement

(1) For subsection 185(5) of the Act, this regulation prescribes the requirements for the signing of an enterprise agreement.

(2) For paragraph 185(2)(a) of the Act, a copy of an enterprise agreement is a signed copy only if:

(a) it is signed by:

(i) the employer covered by the agreement; and

(ii) at least 1 representative of the employees covered by the agreement; and

(b) it includes:

(i) the full name and address of each person who signs the agreement; and

(ii) an explanation of the person’s authority to sign the agreement.

Note: Paragraph 185(2)(a) of the Act requires an application for approval of an enterprise agreement to be accompanied by a signed copy of the agreement.

(3) Unless the representative of the employees covered by the agreement is an employee in a class of employees who will be bound by the agreement, the representative’s signature is not taken to indicate that the representative intends to be bound by the agreement.”

[9] As can be seen from subsection 185(2) of the Act, an application for approval of an enterprise agreement must be accompanied by a signed copy of the agreement. Regulation 2.06A stipulates that a copy of an enterprise agreement is a signed copy only if, inter alia, it, that is, the copy of the agreement accompanying the application, includes an explanation of the person’s authority to sign the agreement.

[10] In this instance, the copy of the Agreement which accompanied the application did not include an explanation of the person’s authority to sign the Agreement on behalf of employees. The replacement signatory page 20 presented by the Employers, relevantly included the words “EMPLOYEE BARGAINING REP” after the typed text “Authority to sign the agreement:”.

[11] Consequently the application for approval of the Agreement did not comply with one detail of the Regulation made under subsection 185(5) of the Act. I have carefully considered whether s.586 of the Act would provide the Commission with a discretionary power to allow a correction of the Agreement document in the form of a replacement signatory page 20. Having particular regard for the Full Bench Decision in Mihajlovic, (specifically paragraphs [35] to [41] inclusive) I have reached the conclusion that the Commission may, pursuant to subsection 586 (a) of the Act allow the replacement signatory page 20 as a correction to the Agreement document.

[12] However, in the particular circumstances of this case I have decided not to exercise the discretionary power provided by subsection 586 (a) of the Act and therefore the replacement signatory page is not allowed. The refusal to correct the signatory page has arisen from the nature and extent of the challenges to the approval of the Agreement raised by the CPSU and the MEAA. The CPSU and the MEAA have raised significant concerns with aspects of the terms of the Agreement which are asserted to offend both the National Employment Standards and the Better Off Overall Test. In addition, challenge has been made to the process which involved the making of the Agreement such that the Agreement was said to have not been genuinely agreed to by the employees as required by s.188 of the Act.

[13] In these circumstances I have formed the view that the most practical and efficient means to provide the best prospect for the Parties to establish an agreement which may be far less contentious than the subject of this application, and hopefully capable of timely approval, would involve the re-commencement of negotiations between the Parties.

[14] Unfortunately the application has not been made in accordance with the signature requirements of s.185 of the Act, and the Commission has decided to refuse any correction to the Agreement document. Consequently the approval sought pursuant to s.185 must be refused. Accordingly the application is dismissed.

COMMISSIONER

Appearances:

Ms L Mummé solicitor, appeared for the Employers;

Mr M Chesher appeared for the MEAA; and

Mr K Barnes appeared for the CPSU.

Hearing details:

2014.

Sydney:

May, 29.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR551201>