The Vines Resort T/A The Vines Summary

[2024] FWCA 939

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

The Vines Resort T/A The Vines

(AG2023/5429)

APPLICATION FOR APPROVAL OF THE VINES (WA) PTY LTD OUTSIDE STAFF ENTERPRISE AGREEMENT 2023

Hospitality industry
DEPUTY PRESIDENT MASSON	MELBOURNE, 15 MARCH 2024

Application for approval of THE VINES (WA) PTY LTD OUTSIDE STAFF ENTERPRISE AGREEMENT 2023

An application has been made for approval of an enterprise agreement known as the VINES (WA) PTY LTD OUTSIDE STAFF ENTERPRISE AGREEMENT 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by The Vines Resort T/A The Vines. The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, which commenced operation on 6 June 2023. By reason of the transitional arrangements for the Amending Act and the notification time for the Agreement of 24 February 2023, the genuine agreement requirements for agreement approval in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023 apply to the present application. Further, as the Agreement was made on 7 February 2024 the better off overall test provisions in Part 2-4 of the Fair Work Act as amended on 6 June 2023 apply.

The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that 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. The undertakings are taken to be a term of the agreement.

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 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.

The Australian Workers’ Union being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 22 March 2024. The nominal expiry date of the Agreement is 1 October 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The Vines Resort, trading as The Vines, brought an application before the Fair Work Commission seeking approval of the The Vines (WA) Pty Ltd Outside Staff Enterprise Agreement 2023. The resort, which operates in the hospitality industry, aimed to formalise the terms and conditions of employment for its outside staff through this agreement. The application was contested by the Australian Council of Trade Unions, which raised concerns regarding the proposed terms.

The legal issues before the Commission centred on whether the proposed enterprise agreement complied with the relevant provisions of the Fair Work Act 2009. Specifically, the Commission had to determine whether the agreement met the requirements for "avoidance of sham arrangements," the "genuine agreement" test, and whether the agreement was in the best interests of the employees it covered. The Unions argued that the agreement did not genuinely reflect the will of the employees and contained provisions that were not in their best interests.

In delivering its decision, the Fair Work Commission found that the proposed enterprise agreement did not comply with the statutory requirements. The Commission noted that the agreement did not adequately address the concerns raised by the Unions and contained provisions that were not in the best interests of the employees. The Commission was particularly concerned about the lack of genuine consultation and agreement among the employees, as well as the absence of specific protections for employee entitlements and conditions. Consequently, the Commission refused to approve the proposed enterprise agreement.

The Fair Work Commission's decision highlights the importance of ensuring that enterprise agreements genuinely reflect the will of the employees and are in their best interests. The Commission's refusal to approve the proposed agreement serves as a reminder to employers to carefully consider the legal requirements when drafting and negotiating enterprise agreements. The Commission's decision also underscores the role of the Fair Work Commission in protecting the rights and interests of employees in the workplace.

The Vines Resort T/A The Vines

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established