[2016] FWC 2973 [Note: An appeal pursuant to s.604 (C2016/3912) was lodged against this decision. - refer to Full Bench decision dated 25 August 2016 [[2016] FWCFB 4969] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Uniline Australia Limited
(AG2016/634)

COMMISSIONER ROE

MELBOURNE, 13 MAY 2016

Application for approval of the Uniline Australia Limited Enterprise Agreement. Notice of employee representational rights issued more than 14 days after the notification time. Section 188(a)(ii) requires a valid notice of representational rights. A notice issued more than 14 days after the notification time is invalid. Lack of genuine agreement.

[1] An application has been made for approval of an enterprise agreement known as the Uniline Australia Limited Enterprise Agreement 2016 (the Agreement). The application was made pursuant to Section 185 of the Fair Work Act 2009 (the Act). It has been made by Uniline Australia Limited. The Agreement is a single enterprise agreement.

[2] I raised a number of concerns with the employer. There was considerable correspondence between the parties which resolved some but not all of those concerns. The matter was finalised at a hearing on 11 May 2016.

[3] It is agreed that the notification time for the Agreement occurred in April 2014. 1 I provided the employer with the opportunity to clarify whether or not this response was in fact accurate and they provided such confirmation. The last notice of representation rights was issued on 11 February 2016. The notice met the content requirements of Section 174(1A) of the Act.

[4] I am satisfied that the Agreement cannot be approved because I am not satisfied that Section 186(2)(a) “genuine agreement” has been met. The Agreement cannot be approved unless Section 186(2)(a) is met.

[5] The requirement for genuine agreement in Section 186(2)(a) is defined in Section 188:

“188 When employees have genuinely agreed to an enterprise agreement

An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that:

(a) the employer, or each of the employers, covered by the agreement complied with the following provisions in relation to the agreement:

(i) subsections 180(2), (3) and (5) (which deal with pre-approval steps);
(ii) subsection 181(2) (which requires that employees not be requested to approve an enterprise agreement until 21 days after the last notice of employee representational rights is given); and

(b) the agreement was made in accordance with whichever of subsection 182(1) or (2) applies (those subsections deal with the making of different kinds of enterprise agreements by employee vote); and

(c) there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees.”

[1] The issue in contention in this case is whether or not Section 188(a)(ii) has been complied with or in other words whether Section 181(2) has been complied with.

“181 Employers may request employees to approve a proposed enterprise agreement

(1) An employer that will be covered by a…

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] FWC 2973
Decision Date: 13 May 2016

CaseChat Overview and Summary

The matter in Uniline Australia Limited involved a dispute regarding the approval of an enterprise agreement. The Fair Work Commission was tasked with determining whether the agreement should be approved, considering the validity of a notice of employee representational rights. The applicant, Uniline Australia Limited, sought approval of the agreement, while the respondent raised concerns about the timing of the notice and the validity of the agreement. The nature of the dispute centred on whether the notice of employee representational rights was issued within the required timeframe and whether there was a genuine agreement between the parties.

The legal issues that the Fair Work Commission had to address included the interpretation of section 188(a)(ii) of the Fair Work Act, which mandates a valid notice of representational rights, and the requirement for a genuine agreement between the parties. Specifically, the Commission needed to determine if the notice was issued more than 14 days after the notification time, rendering it invalid, and whether there was evidence of a genuine agreement given the timing issue. The Commission also had to consider the implications of an invalid notice on the overall validity of the enterprise agreement.

In reaching its decision, the Fair Work Commission found that the notice of representational rights was indeed issued more than 14 days after the notification time, making it invalid under section 188(a)(ii) of the Fair Work Act. Consequently, the Commission concluded that the lack of a valid notice undermined the integrity of the agreement process. The Commission also found that the timing issue indicated a lack of genuine agreement between the parties. Given these findings, the Commission determined that the enterprise agreement could not be approved. The Commission emphasised that the integrity of the agreement process could not be upheld where fundamental procedural requirements were not met, and the lack of a genuine agreement further supported the decision not to approve the enterprise agreement.

Orders