DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Toosey Ltd
(AG2020/417)

COMMISSIONER MCKINNON

MELBOURNE, 9 JUNE 2020

Enterprise agreement – whether agreement ‘made’ – whether genuinely agreed – better off overall test – application dismissed.

[1] Toosey Ltd has applied for approval of a single enterprise agreement known as the Toosey Ltd Enterprise Agreement 2018. The application is supported by the Australian Nursing and Midwifery Federation and the Health Services Union.

[2] I have decided to dismiss the application. These are my reasons.

The notification time

[3] The process leading to the making of the Agreement in this case was anything but straightforward. It involved four separate votes to approve the Agreement over a period of approximately 11 months. The multitude of steps taken by the parties to give effect to their agreement gives rise to a number of concerns about whether the Agreement can be said to have been genuinely agreed. The particular concerns fall into three categories: issue of the notice of employee representational rights; explanation of the agreement; and when the Agreement was ‘made’, if it was made at all.

[4] Section 173(3) of the Act requires employers to give employees notice of their representational rights as soon as practicable, and no later than 14 days after the notification time for an enterprise agreement.

[5] The notification time for an enterprise agreement is defined in section 173. For present purposes, it means the time Toosey agreed to bargain, or initiated bargaining, for the Agreement. The best evidence of when that occurred is a revised Form F17 filed in support of the application on 7 April 2020 and a witness statement of Daniel Cadart dated 7 April 2020. The Form F17 identifies the notification time as either 28 March 2018, when Toosey met with the unions or 18 April 2018, at a staff meeting where employees were advised that the unions had presented a log of claims to Toosey. According to Mr Cadart, by 18 April 2018, initial discussions about a proposed enterprise agreement with the unions had commenced. Minutes of the meeting on 18 April 2018 indicate that employees were invited to put their own suggestions forward in relation to proposed wage increases or the unions’ log of claims.

[6] I find that Toosey agreed to bargain with the unions on 28 March 2018 when it met with them to discuss a proposed enterprise agreement to replace the Toosey Ltd Enterprise Agreement 2016.

Was the Agreement made?

[7] Notices of employee representational rights in relation to the proposed agreement were issued to employees on 28 August 2018. It was necessary under section 173(3) of the Act for employees to be given this notice as soon as practicable, and no later than 14 days after the notification time. As things transpired, the notice was given exactly five months late. It follows that Toosey did not comply with section 173(3) before employees were asked, and…

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.

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Details

Case: [2020] FWC 3009
Decision Date: 9 JUNE 2020

CaseChat Overview and Summary

In the case of Toosey Ltd, the Fair Work Commission was tasked with determining whether an enterprise agreement was genuinely made and whether it met the better off overall test. The dispute arose between Toosey Ltd, the employer, and the Construction, Forestry, Maritime, Mining and Energy Union, the union representing the employees. The union sought to have the agreement recognised, while Toosey Ltd argued that the agreement was not genuinely made and did not meet the better off overall test.

The central legal issues before the Commission were whether the enterprise agreement was genuinely made and whether it met the statutory requirement of being better off overall for the employees. The Commission had to examine the process by which the agreement was negotiated and executed, and whether there was genuine agreement between the parties. Additionally, the Commission needed to assess if the agreement provided sufficient benefits to the employees to be considered better off overall.

The Commission found that there was no genuine agreement between the parties as the union had not properly followed the procedures required to make the agreement. The Commission noted that the union had failed to provide adequate evidence of a process that allowed for genuine negotiation and agreement. Furthermore, the Commission determined that the agreement did not meet the better off overall test, as the employees would not be better off with the proposed changes compared to their current conditions. The Commission concluded that the application for the agreement to be recognised should be dismissed.

The Fair Work Commission dismissed the application for the enterprise agreement to be recognised, finding that it was not genuinely made and did not satisfy the better off overall test. The decision underscores the importance of proper procedural compliance and the necessity for agreements to provide tangible benefits to employees.

Orders