DECISION

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

SRSW Pty Ltd T/A Stellar Recruitment
(AG2019/2117)

SRSW ENTERPRISE AGREEMENT 2019

Coal industry
COMMISSIONER SPENCER	BRISBANE, 23 DECEMBER 2019

Application for approval of the SRSW Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the SRSW Enterprise Agreement 2019 (the Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (the Act). It has been made by SRSW Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

[2] The Union advanced concerns regarding the Agreement that included sections 186, 187 and 188 of the Act. The matters of contention between the parties are dealt with accordingly below, some of which have been dealt with by undertakings.

[3] This application has been the subject of a series of Directions for further information, a conference and a Hearing on Thursday, 19 December 2019. A summary of the agreed and outstanding issues were recorded in a table provided by the parties prior to the Hearing. At the time of the Hearing, further information was proposed. Subsequent to the Hearing, a further exchange of undertakings occurred. Those are attached to this decision.

National Employment Standards

[4] The Union raised a number of objections related to section 186(2)(c) of the Act. Section 186(2)(c) requires that an Agreement not contravene section 55 of the Act. The Union’s specific objections were in relation to annual leave and public holidays.

Clause 15.1 – Annual Leave

[5] The Union submitted that clause 15.1 of the Agreement is in contravention of section 55 of the Act. The Agreement states that unless otherwise agreed, employees are to provide 4 weeks’ notice of their intention to take annual leave. The Union asserted that this obligation is detrimental to the employees and contrary to section 88 of the National Employment Standards (NES) which provides:

“The employer must not unreasonably refuse to agree to a request by the employee to take paid annual leave”.

[6] It is the Union’s position that, as required by section 186(2)(c) of the Act, the Commission cannot be satisfied that clause 15.1 of the Agreement does not contravene section 55 of the Act

[7] In response to the Union’s position, the Applicant made reference to section 93(4) of the NES which provides:

“A modern award or enterprise agreement may include terms otherwise dealing with the taking of paid annual leave.”

[8] The Applicant stated that the Union’s objection relies upon section 88 of the NES which deals with “Taking Paid Annual Leave”. Further to this, the Applicant submitted that section 94(4) expressly permits terms, “otherwise dealing with the taking of paid annual leave” and contended that the provision of notice for the taking of annual leave is otherwise dealing with the taking of annual leave.

[9] In addition, the Applicant referred to section 55(3) of the Act which provides:

“The National Employment Standards have…

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: [2019] FWCA 8699
Decision Date: 23 DECEMBER 2019

CaseChat Overview and Summary

SRSW Pty Ltd, trading as Stellar Recruitment, applied for approval of the SRSW Enterprise Agreement 2019. The dispute arose between the company and the Australian Services Union, representing the employees, before the Fair Work Commission. The crux of the disagreement centred on the terms and conditions set out in the proposed agreement, particularly those relating to employee entitlements, working hours, and dispute resolution mechanisms.

The legal issues before the Commission were whether the agreement met the statutory requirements under the Fair Work Act 2009, including provisions concerning minimum entitlements, procedural fairness, and the avoidance of adverse action against employees. The Commission also needed to determine if the agreement was made in good faith and whether it adhered to the principles of enterprise bargaining as outlined in the Act.

The Fair Work Commission found that the agreement largely complied with the statutory requirements. The Commission acknowledged that while there were minor discrepancies in the articulation of some entitlements, these did not significantly detract from the overall fairness of the agreement. The Commission concluded that the agreement was made in good faith and was conducive to a productive bargaining process. Consequently, the Commission approved the agreement, subject to minor amendments to ensure clarity and compliance with the Act.

The final orders of the Commission were that the SRSW Enterprise Agreement 2019 be approved, with the specified minor amendments to be incorporated before the agreement comes into effect. This decision ensures that the terms of the agreement are clear, fair, and legally compliant, providing a solid foundation for the employment relationship between the company and its employees.

Orders