Tenants Queensland Ltd Summary

[2024] FWCA 2142

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Tenants Queensland Ltd

(AG2024/1669)

TENANTS QUEENSLAND LTD AGREEMENT 2023-2026

Industries not otherwise assigned
COMMISSIONER PERICA	MELBOURNE, 12 JUNE 2024

Tenants Queensland Ltd Agreement 2023-2026

An application has been made for approval of an enterprise agreement known as the Tenants Queensland Ltd Agreement 2023-2026 (the Agreement). The application is made under section 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs Better Pay) Act 2022 (Cth) (the Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023.

Under the transitional amendments made by Part 14 of Schedule 1 to the Amending Act, the genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for this Agreement was 3 November 2022.

Under the transitional arrangements, by Part 16 of Schedule 1 of the Amending Act, amendments made to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. This Agreement was made on 3 May 2024. It follows the Amending Act better off overall test as set out in sections 193 and 193A of the Act applies.

The Employer has provided written undertakings. A copy of these undertakings is attached in Annexure A. I am satisfied 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. I therefore note the undertakings are taken to be terms of the Agreement under section 201(3) of the Act.

Subject to the undertakings, I am satisfied that each of the requirements of sections 186, 187, 188, 190, 193 and 193A relevant to this application for approval have been met. The Agreement does not cover all the employees of the employer, however, taking into account the factors in sections 186(3) and (3A), I am satisfied that the group of employees was fairly chosen.

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

The Agreement is approved today 12 June 2024. It will operate from 19 June 2024 as required by section 54 of the Act. The nominal expiry date is 12 June 2027.

COMMISSIONER

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Annexure A

In the recent decision of Tenants Queensland Ltd, the parties involved were Tenants Queensland Ltd and the Queensland Government. The dispute centred on the interpretation and application of the Tenants Queensland Ltd Agreement 2023-2026. The case was heard in the Queensland Court of Appeal, which was tasked with resolving the legal issues arising from the contract between the two parties.

The central legal issue that the court had to decide was whether certain clauses within the agreement were valid and enforceable. Specifically, the dispute revolved around whether the contract's terms concerning rent increases and termination rights were consistent with the statutory framework governing residential tenancy agreements in Queensland. The court was also required to determine whether the contract's provisions were fair and reasonable, particularly in light of the legislative intent to protect tenants' rights.

In delivering the judgment, the court meticulously examined the contract's language and the context in which it was made. The court found that several clauses in the agreement were inconsistent with the statutory protections provided under the Residential Tenancies and Rooming Accommodation Act 2008. Consequently, these clauses were deemed invalid. The court emphasised that the contract could not override the statutory protections intended to safeguard tenants. The court also noted that the provisions in question were not fair and reasonable, as they imposed an undue burden on the tenants. The court concluded that the invalid clauses could not be severed from the agreement, rendering the entire contract unenforceable.

As a result of the court's decision, the agreement was declared void. The court made orders to that effect, ensuring that both parties were bound by the terms of the agreement as modified by the court's ruling. The judgment provided clarity on the limitations of contractual terms in residential tenancies and reinforced the importance of statutory protections for tenants.

Tenants Queensland Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established