TasTAFE - [2024] FWCA 464

[2024] FWCA 464

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

TasTAFE

(AG2023/5039)

TASTAFE GENERAL EMPLOYEES ENTERPRISE AGREEMENT 2023

Educational services
DEPUTY PRESIDENT BELL	MELBOURNE, 4 MARCH 2024

Application for approval of the TasTAFE General Employees Enterprise Agreement 2023 – objections that enterprise agreement not genuinely agreed – whether persons not covered who voted – whether necessary to explain effect of agreement by reference to the modern award - whether misrepresentations made by the employer – undertakings – s.218A variation to correct obvious error, defect or irregularity – application approved with undertakings.

An application has been made for approval of an enterprise agreement known as the TasTAFE General Employees Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (the Act) by TasTAFE (TasTAFE/employer). The Agreement is a single enterprise agreement.

The notification time for the Agreement under s 173(2) was 20 March 2023 and the Agreement was made on 24 November 2024. Accordingly, the genuine agreement requirements are assessed under the Act as those applying before 6 June 2023 and the better off overall test (BOOT) is that applying on and from 6 June 2023.[1]

During the application approval process, ‘Form F18’ declarations were respectively filed by the Australian Education Union (AEU), (CPSU), the Community & Public Sector Union and the United Workers’ Union (UWU) indicating opposition to the approval of the Agreement. Each of those three unions were bargaining representatives of employees and are entitled to be covered by the Agreement.

I describe the objections below. Having regard to the nature and scope of the objections, I issued directions for the exchange of evidence and submissions, and further exchange of reply material, and listed the matter for a hearing (initially for 17 January 2024 but, following a joint request from the parties, on 23 January 2024).

Each of TasTAFE and the AEU filed evidence and submissions. While the CPSU and UWU did not file material, they indicated their support of the AEU’s position. TasTAFE filed two statements of Mr Vivek Foot (Senior Industrial Relations Specialist for TasTAFE). Mr Foot was cross-examined. The AEU filed statements for Mr Paul Nilssen (a TasTAFE employee and member of the AEU), Ms Emma Gill (Lead Organiser for the AEU, Tasmania), and Ms Lynne Dacey (an employee of TasTAFE and member of the AEU). The AEU witnesses were not required for cross-examination.

The objections

The objections raised by the AEU fell into two broad categories, being whether there was ‘genuine agreement’ for the purposes of ss 186(2) and 188 of the Act and what were described as various ‘NES/BOOT’ issues.[2]

As to the genuine agreement issues, they are summarised as follows (with all reference to legislation for this purpose being as it stood prior to 6 June 2023):

· First, the employer did not provide employees seven clear days of the time and place of voting nor provide a copy of the Agreement by the same time.[3] That information and the…

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: [2024] FWCA 464
Decision Date: 4 MARCH 2024

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application for the approval of the TasTAFE General Employees Enterprise Agreement 2023. The applicants sought approval of the enterprise agreement under section 233 of the Fair Work Act 2009, while several objectors raised concerns about the validity of the agreement. The objectors argued that the agreement was not genuinely agreed upon by the employees, that some individuals who were not covered by the agreement had voted, and that the necessary explanatory material had not been provided. They also claimed that the employer had made misrepresentations and that there were irregularities in the agreement.

The legal issues the Commission was required to address included whether the enterprise agreement had been genuinely agreed upon, whether the voting process was conducted fairly, and whether the necessary explanatory material had been provided. The Commission also had to consider whether there had been any misrepresentations by the employer and whether any irregularities in the agreement needed to be corrected. The objectors argued that the agreement was invalid due to these issues, while the applicants maintained that the agreement was valid and should be approved.

The Commission found that, while there were some issues with the agreement, they were not significant enough to invalidate it. The Commission considered that the agreement had been genuinely agreed upon by the employees and that the voting process was conducted fairly. The Commission also found that the necessary explanatory material had been provided, although it noted that it could have been improved. The Commission rejected the claim that the employer had made misrepresentations and found that any irregularities in the agreement could be corrected through a variation under section 218A of the Act. The Commission approved the application for the approval of the agreement, subject to the applicants providing undertakings to address the issues identified by the Commission.

The Commission's final orders included the approval of the TasTAFE General Employees Enterprise Agreement 2023, subject to the applicants providing undertakings to address the issues identified by the Commission. The undertakings included providing additional explanatory material to the employees, ensuring that only eligible employees were allowed to vote in future agreements, and ensuring that the employer did not make any misrepresentations in future agreements. The Commission also ordered that the applicants provide a copy of the final agreement to the Commission within 28 days of the decision.

Orders