Top End Group Training Pty Ltd

[2022] FWCA 2153

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Top End Group Training Pty Ltd

(AG2022/1785)

GTNT Group Enterprise Agreement 2022 to 2024

Clerical industry
COMMISSIONER MATHESON	SYDNEY, 29 JUNE 2022

Application for approval of the GTNT Group Enterprise Agreement 2022 to 2024.

An application has been made for approval of an enterprise agreement known as the GTNT Group Enterprise Agreement 2022 to 2024 (Agreement). The application was made by Top End Group Training Pty Ltd (Applicant) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single enterprise agreement.

The application was accompanied by a signature page that did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth) (Regulations). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to waive an irregularity in the form or manner in which an application was made and do so pursuant to s.586(b) of the Act.

I observe that certain provisions of the Agreement may be inconsistent with the National Employment Standards (NES). However, noting clause 7.1 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Regulations is taken to be a term of the Agreement.

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

The Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A of this decision (Undertakings). The views of each person I know is a bargaining representative for the Agreement were sought in relation to the Undertakings and no objections were raised. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a)cause financial detriment to any employee covered by the Agreement; or

(b)result in substantial changes to the Agreement.

Pursuant to s.190(3) of the Act, I accept the Undertakings.

Subject to the Undertakings, and on the basis of the materials before the Commission, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to the application for approval of the Agreement have been met.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 6 July 2022. The nominal expiry date of the Agreement is 31 December 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Top End Group Training Pty Ltd applied to the Fair Work Commission for approval of the GTNT Group Enterprise Agreement 2022 to 2024. The applicant sought approval of the enterprise agreement under section 185 of the Fair Work Act 2009. The agreement was accompanied by a signature page that did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009. However, an amended signature page was subsequently filed. The Commissioner considered it appropriate to waive the irregularity in the form or manner in which the application was made and did so pursuant to section 586(b) of the Act.

The legal issues that the court needed to decide included whether certain provisions of the Agreement may be inconsistent with the National Employment Standards (NES), and if so, whether the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES. The court also needed to determine if the model flexibility term prescribed by the Regulations is a term of the Agreement, and if the model consultation term prescribed by the Regulations is also a term of the Agreement. Additionally, the court had to consider the effect of the written undertakings provided by the Employer on the employees covered by the Agreement.

The court found that certain provisions of the Agreement may be inconsistent with the NES. However, the court was satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES. The court also found that the model flexibility term prescribed by the Regulations is a term of the Agreement, and that the model consultation term prescribed by the Regulations is also a term of the Agreement. The court accepted the written undertakings provided by the Employer, noting that the views of each person who is a bargaining representative for the Agreement were sought in relation to the Undertakings and no objections were raised. The court was satisfied that the effect of accepting the Undertakings is not likely to cause financial detriment to any employee covered by the Agreement or result in substantial changes to the Agreement.

The court concluded that the requirements of sections 186, 187, 188 and 190 of the Act as are relevant to the application for approval of the Agreement have been met. The Agreement was approved and will operate from 6 July 2022. The nominal expiry date of the Agreement is 31 December 2024.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established