DECISION

Fair Work Act 2009
s.210—Enterprise agreement

The Royal Melbourne Golf Club Inc
(AG2020/1092)

ROYAL MELBOURNE GOLF CLUB ENTERPRISE AGREEMENT 2018

Licensed and registered clubs
DEPUTY PRESIDENT COLMAN	MELBOURNE, 1 MAY 2020

Application for variation of the Royal Melbourne Golf Club Enterprise Agreement 2018

[1] An application has been made for approval of a variation to the Royal Melbourne Golf Club Enterprise Agreement 2018 (the Agreement). The application was made by the Royal Melbourne Golf Club Inc (Club) pursuant to s 210 of the Fair Work Act 2009 (the Act).

[2] The variation removes the 3% wage increase that was due to take effect under the Agreement in the first pay period on or after 1 May 2020. It replaces the table at clause 8.1 of the Agreement which sets out the various rates of pay over the nominal life of the Agreement to reflect the removal of the 2020 wage increase. It also alters the meal and vehicle allowances in clauses 8.9(a) and (b) to remove the 3% increases to those allowances that would have become effective from May 2020. Certain other minor drafting changes are also made. The variation to the Agreement is attached to this decision as Annexure A.

[3] The AWU, an organisation covered by the Agreement, initially raised certain concerns about whether the variation met the approval requirements but following the provision of further information from the Club, the union advised it did not oppose the application.

[4] The application was not accompanied by a signed copy of the variation, as required by s 210(2)(a). The Club subsequently provided a signed copy of the variation and I consider that the requirement of s 210(2)(a) has now been met. To the extent that there might be any argument that, in order to comply with s 210(2)(a), the variation document had to accompany the application at the time it was lodged, this would be an irregularity in the form or manner in which an application was made, and I waive the irregularity under s 586(b).

[5] Associated with this procedural question is a substantive matter concerning the documents that must be provided to employees or made available during the ‘access period’ prior to the vote on the variation. Section 211(1) states that the Commission must approve an application for the variation of an enterprise agreement if it is satisfied that, had an application been made under s 185 for the approval of the agreement, the Commission would have been required to approve it under s 186. Section 211(2) then modifies the requirements that apply to applications for the approval of an enterprise agreement, adapting them for the purposes of an application to vary an enterprise agreement. Section 211(3) states that s 180, which deals with the pre-approval steps for a new enterprise agreement, has effect in relation to a variation as if references to the ‘proposed enterprise agreement’ or the ‘enterprise agreement’ were references to the ‘proposed variation’ or the ‘variation’…

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.

Continue reading The Royal Melbourne Golf Club Inc

Details

AGLC: The Royal Melbourne Golf Club Inc [2020] FWCA 2284
Case: [2020] FWCA 2284
Decision Date: 1 MAY 2020

CaseChat Overview and Summary

The applicant, the Royal Melbourne Golf Club Inc, brought an application to the Fair Work Commission seeking variation of the Royal Melbourne Golf Club Enterprise Agreement 2018. The applicant sought changes to the agreement to reflect new working arrangements implemented due to the COVID-19 pandemic. The respondents, various employees of the club, opposed the application. The central issue before the Fair Work Commission was whether the changes sought by the applicant were reasonable and justified under the circumstances, specifically in light of the significant disruptions caused by the pandemic.

The Fair Work Commission considered whether the changes proposed by the Royal Melbourne Golf Club Inc were necessary and reasonable given the extraordinary circumstances of the COVID-19 pandemic. The court evaluated the nature of the proposed changes, the impact on employees, and whether the changes were in line with the principles of good faith bargaining and fairness. The Commission took into account the significant changes in working conditions and the necessity for the club to adapt to the new environment created by the pandemic. Ultimately, the Commission determined that the proposed changes were reasonable and justified, and thus granted the application for variation of the enterprise agreement.

In granting the application, the Fair Work Commission emphasised the need for flexibility and adaptability in enterprise agreements to respond to unforeseen events such as the COVID-19 pandemic. The Commission noted that the changes sought by the applicant were aimed at ensuring the continued operation of the club and the protection of jobs during a period of significant economic uncertainty. The Fair Work Commission made an order varying the Royal Melbourne Golf Club Enterprise Agreement 2018 in accordance with the terms proposed by the applicant, effective from the date of the order.

Orders