Tabcorp Assets Pty Ltd T/A Tabcorp

[2016] FWCA 8951

[2016] FWCA 8951

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Tabcorp Assets Pty Ltd T/A Tabcorp
(AG2016/6278)

TABCORP VIC ON-COURSE & LIVE EVENTS ENTERPRISE AGREEMENT 2016

Retail industry
DEPUTY PRESIDENT GOOLEY	MELBOURNE, 14 DECEMBER 2016

Application for approval of the Tabcorp VIC On-Course & Live Events Enterprise Agreement 2016.

[1] An application has been made for approval of an enterprise agreement known as the Tabcorp VIC On-Course & Live Events Enterprise Agreement 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Tabcorp Assets Pty Ltd T/A Tabcorp. The agreement is a single enterprise agreement.

[2] Mr William Ross, a bargaining representative, objected to the approval of the Agreement. As a consequence, the matter was listed for hearing on 12 December 2016. On 8 December 2016 my chambers advised Mr Ross of the relevant sections of the Act that he needed to address. He was also advised that if there were facts he sought to rely upon, his witnesses would need to attend the hearing to be cross examined. Mr Ross notified the Commission on 8 December 2016 that he may not be able to attend the hearing and on Saturday 10 December 2016 he confirmed that he was unable to attend.

[3] On 12 December 2016, upon receipt of this email by my chambers, Mr Ross was advised that the hearing would proceed. I refused Mr Ross’ request to defer the hearing because I saw no reason why the employees who would be covered by the Agreement should have the approval process further delayed and be denied the pay increase which would only be payable if the Agreement was approved. Further, the matters raised in Mr Ross’ correspondence did not address the matters the Commission must have regard to in deciding to approve the Agreement.

[4] Mr Ross, in his correspondence, set out the claims he made as part of bargaining. However, that a bargaining representative was unsuccessful in achieving his or her claims in bargaining is not a basis to refuse approval of the Agreement. If Mr Ross had concerns that Tabcorp was not bargaining in good faith he was able to make application to the Commission either by notifying a bargaining dispute or by applying for bargaining orders. Once the Agreement was made with the employees, the Commission has to have regard to the criteria set out in the Act in determining whether to approve the Agreement. Mr Ross also complained the the voting seemed to be “rushed and conducted in cohorts with the company conducting the vote.”

[5] The statutory declaration filed by Tabcorp disclosed that the necessary information was sent to employees on 1 September 2016. Meetings were held with employees and the ASU between 5 September and 15 September 2016 to explain the proposed agreement. A text message with how to vote information was sent to voters on 13 September 2016 and voting opened on 16 September. The Agreement was made on 25 September 2016. Of the 392 employees covered by the Agreement, 284 voted and 169 voted in favour. There is nothing in this process that is rushed. Employees here were given longer than the seven day access period provided for in the Act to consider the Agreement.

[6] At the hearing, the ASU supported the application for approval of the Agreement.

[7] The Applicant 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.

[8] 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.

[9] The Australian Municipal, Administrative, Clerical and Services Union, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

[10] The Agreement was approved on 12 December 2016 and, in accordance with s.54, will operate from 19 December 2016. The nominal expiry date of the Agreement is 30 June 2020.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code G, AE422663  PR588518>

ANNEXURE A