The Royal Melbourne Golf Club Inc

[2020] FWCA 2284

[2020] FWCA 2284

FAIR WORK COMMISSION

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’ (see ss 211(3)(a) and (d)).

[6] For the approval of a new enterprise agreement, s 180(2) requires the employer to take all reasonable steps to ensure that, during the access period for the agreement, the employees are given a copy of the written text of the ‘agreement’ and incorporated materials, or that employees have access to those materials throughout the access period. The ‘adaptation’ provision in s 211(3) does not say how the term ‘agreement’ is to be treated for variation purposes, however ‘agreement’ clearly has the same meaning here as ‘enterprise agreement’. This means that, for variation applications, the reference to an ‘agreement’ in s 180(2) is to be read as a reference to a ‘variation’. As s 210 refers separately to a ‘variation’ and a copy of the agreement ‘as proposed to be varied’, it would appear that these are separate documents, and that the ‘variation’ is a document containing the variation or variations alone, without the text of the agreement. It therefore appears that employees who are to vote on a proposed variation to an enterprise agreement must be provided with a copy of, or access to, the variation. This did not occur in the present case.

[7] Nevertheless, I consider this to be a ‘minor procedural or technical error’ for the purpose of s 188(2) (which is relevant to variation applications because of s 211(3)(c)). The employees in question were not disadvantaged by it. This is not a case where the proposed variations were detailed or technical. They did not need to be separately documented in order to be clearly understood. There were only three substantive changes, which were explained to employees and highlighted in the voting notice. Further, the three substantive provisions of the Agreement that were affected by the variation appear in the Agreement in tabular form, and it is abundantly clear from the amended tables that the increases for the year 2020 have been removed and left blank.

[8] I note that the Club’s F23A statutory declaration was not made before an authorised witness as required by the Fair Work Commission Rules as then in force. However, in light of the current difficulties in making sworn statements because of social distancing measures associated with the coronavirus pandemic, I grant relief from the rules.

[9] The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

[10] In accordance with s 216 of the Act, the variation operates from 1 May 2020.

DEPUTY PRESIDENT

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