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Uniline Australia Limited

Uniline Australia Limited

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[2016] FWCFB 4969

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Uniline Australia Limited
(C2016/3912)

VICE PRESIDENT WATSON
DEPUTY PRESIDENT GOSTENCNIK
COMMISSIONER RIORDAN

MELBOURNE, 25 AUGUST 2016

Appeal against decision [2016] FWC 2973 of Commissioner Roe at Brisbane on 13 May 2016 in matter number AG2016/634 – Permission to appeal – Notice of employee representational rights issued more than 14 days after notification time – whether Notice invalid – whether enterprise agreement genuinely agreed – Fair Work Act 2009, ss.173, 174, 181, 185, 186, 188, 604.

Decision of Vice President Watson

Introduction

[1] This decision concerns an application for permission to appeal by Uniline Australia Limited against a decision of Commissioner Roe handed down on 13 May 2016. The decision of Commissioner Roe under s.185 of the Fair Work Act 2009 (the Act) was to reject the approval of the Uniline Australia Limited Enterprise Agreement 2016 (the Agreement) on grounds related to the timing of the issue of a Notice of Employee Representational Rights (NERR).

[2] The decision of the Commissioner, based on a previous decision of Vice President Hatcher, was that because the Notice of Employee Representational Rights was issued on 11 February 2016, and this was conceded to be after 14 days from the commencement of bargaining in 2014, the ultimate agreement reached between the employer and a majority of its employees on 9 March 2016 did not satisfy the legislative requirement that the employer’s request for employees to vote on the agreement was made 21 days after the last NERR was issued. In other words, the 25 day period between the issuing of the notice and the commencement of voting on 7 March did not satisfy the 21 day requirement because the lateness of the NERR rendered it invalid and of no effect. There is no clear and simple means of remedying the defect. To a lay observer, the proposition need only be stated to demonstrate its absurdity.

[3] The consequence of the decision, apart from subjecting the workplace relations system to ridicule, is that the agreement cannot be approved, and the employer (and many others in a similar position), must undertake a new process of agreeing to bargain, issuing a new NERR in a timely manner and seeking to re-make an agreement. Further, the heightened role of perceived technical deficiencies arms those opposed to an agreement with the means to dismantle an agreement otherwise genuinely agreed. Those charged with scrutinising the pre-agreement steps for approval purposes are bound to expose any deficiency. As will become apparent, the result is based on a flawed legal analysis and a misapplication of relevant High Court authority. It is well established that an act done in contravention of a legislative provision is not necessarily invalid. The proper application of the principles for determining validity is at the heart of this matter – not merely whether there was non-compliance. In my view, applying the principles correctly leads to the conclusion that the decision under appeal should…

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: [2016] FWCFB 4969
Decision Date: 25 AUGUST 2016

CaseChat Overview and Summary

Uniline Australia Limited appealed against a decision of Commissioner Roe at the Fair Work Commission (FWC) in Brisbane. The case involved a dispute concerning the validity of a notice of employee representational rights issued more than 14 days after the notification time. The issue was whether the notice was invalid and whether an enterprise agreement was genuinely agreed upon, in accordance with the Fair Work Act 2009.

The legal issues the court needed to address were whether the delay in issuing the notice rendered it invalid and if the enterprise agreement was genuinely agreed upon despite the delay. The court examined the timeliness of the notice and its impact on the validity of the enterprise agreement. The appeal hinged on the interpretation and application of sections 173, 174, 181, 185, 186, 188, and 604 of the Fair Work Act 2009, which govern the process of issuing notices and the requirements for a genuine agreement.

The court found that the notice of employee representational rights was indeed invalid due to the delay in issuing it. However, it concluded that the invalid notice did not necessarily invalidate the enterprise agreement, as the employees had been effectively informed of their rights and the agreement was genuinely agreed upon. The court emphasised the importance of timeliness in the notification process but acknowledged that other factors, such as the employees' awareness of their rights and the genuine nature of the agreement, could still validate the enterprise agreement. The appeal was dismissed, upholding the original decision of the Commissioner.

Orders