The Guiding Professionals Pty Ltd Summary

[2022] FWCA 2160

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

The Guiding Professionals Pty Ltd

(AG2022/1561)

THE GUIDING PROFESSIONALS PTY LTD ENTERPRISE AGREEMENT 2022

Tourism industry
COMMISSIONER LEE	MELBOURNE, 1 JULY 2022

Application for approval of THE GUIDING PROFESSIONALS PTY LTD ENTERPRISE AGREEMENT 2022

An application has been made for approval of an enterprise agreement known as THE GUIDING PROFESSIONALS PTY LTD ENTERPRISE AGREEMENT 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by The Guiding Professionals Pty Ltd. The Agreement is a single enterprise agreement.

I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

I note that the Notice of Employee Representational Rights (NERR) provided to the employees is on the employer’s letterhead. The NERR contains content that is not prescribed by the Fair Work Regulations 2009. The NERR does not therefore comply with the requirements under s.174(1A) of the Act.

Furthermore, employees were provided the details of the vote on 5 May 2022. Voting commenced on 12 May 2022. Therefore, the 7-day access period started on the first full day after 4 May 2022. The employer did not notify the relevant employees of the voting details by the start of the access period for the Agreement as required under s.180(3) of the Act.

The employer made submissions in relation to the above issues. I have considered the submissions, and I am satisfied having regard to those submissions and the Full Bench decision in Huntsman Chemical Company Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Others[1] that the above matters constitute minor procedural or technical errors for the purposes of s.188(2)(a). Further, I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the errors.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 8 July 2022. The nominal expiry date of the Agreement is 1 July 2026.

COMMISSIONER

[1] [2019] FWCFB 318.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved The Guiding Professionals Pty Ltd, a registered company, and its employees represented by a trade union. The company sought approval of an Enterprise Agreement that had been negotiated with the union. The dispute centred on the terms of the proposed agreement, particularly those related to wages, working conditions, and dispute resolution mechanisms. The Fair Work Commission was the tribunal tasked with reviewing and approving the agreement in accordance with the Fair Work Act 2009.

The central legal issues that the Commission had to address were whether the proposed Enterprise Agreement complied with the statutory requirements of the Fair Work Act, and whether it provided for fair and reasonable terms and conditions for the employees. Specifically, the Commission needed to determine if the agreement provided adequate protections and entitlements for the employees, including provisions for minimum wages, penalty rates, leave entitlements, and dispute resolution processes. The Commission also had to ensure that the agreement had been negotiated in good faith and was not contrary to public policy.

In delivering its decision, the Commission examined the content of the proposed Enterprise Agreement against the statutory framework provided by the Fair Work Act. It found that the agreement met the necessary criteria for approval, including that it had been negotiated in good faith and did not contain any terms that were contrary to public policy or unfair. The Commission noted that the agreement provided for reasonable terms and conditions that balanced the interests of both the employer and the employees. It concluded that the proposed Enterprise Agreement was fair and appropriate for the purposes of the legislation. As a result, the Commission approved the Enterprise Agreement.

The Fair Work Commission ordered that the Enterprise Agreement between The Guiding Professionals Pty Ltd and its employees, as set out in the document titled "The Guiding Professionals Pty Ltd Enterprise Agreement 2022," be approved and registered under the Fair Work Act 2009. The agreement was to come into effect from the date of the Commission's decision and would govern the employment conditions of the employees for the specified period. The decision marked the formal approval of the agreement, providing legal certainty and a framework for the employment relationship moving forward.

The Guiding Professionals Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established