DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Vertech Group Pty Ltd T/A Vertech Group
(AG2020/2911)

DEPUTY PRESIDENT MANSINI

MELBOURNE, 29 JANUARY 2021

Application for approval of the Vertech Group Pty Ltd Offshore Inspection Enterprise Agreement 2020.

[1] Vertech Group has made an application for approval of a single enterprise agreement known as the Vertech Group Pty Ltd Offshore Inspection Enterprise Agreement 2020 (Proposed Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act).

[2] In the course of the proceedings to date, concerns about the application have been raised with and by the Commission. The concerns relate to whether the Commission can be satisfied that:

a) The employees to be covered and prospective employees are “better off overall” under the Proposed Agreement than if the relevant award applied; and

b) The Proposed Agreement was “genuinely agreed” by the employees to be covered, specifically regarding:

• the selection of the voting cohort; and

• the explanation of the terms and effect of the Proposed Agreement.

[3] The Australian Workers’ Union (AWU), in its role as bargaining representative, filed a declaration indicating that it did not support the approval of the Proposed Agreement but sought to be covered by the Proposed Agreement if approved. 1

[4] Vertech Group was directed to respond to the concerns raised and the parties attended a conference at which the concerns were discussed but not resolved. As the parties sought the opportunity to address the Commission further, a program for the filing of submissions and further evidence was agreed and a hearing was convened. In addition to the original application materials, Vertech Group filed an amended declaration (which was not opposed and was received by the Commission pursuant to s.586), submissions and a witness statement of Mr Tom Brennan (Managing Director of Vertech Group). 2 In addition to its original declaration, the AWU filed submissions and a witness statement of Mr Doug Heath (Organiser of the AWU and the Maritime Union of Australia). At the hearing, neither witness was required for cross examination and the parties respectively supplemented their written materials with oral submissions in closing.

The first approval issue

Statutory context

[5] An enterprise agreement requires approval by the Commission in order to have legal effect under the Act. Section 186(1) of the Act establishes a “basic rule” that, where an application for approval of an enterprise agreement has been made, the Commission must approve the agreement if the requirements set out in ss.186 and 187 are met. One such requirement is that I be satisfied that the Proposed Agreement passes the “better off overall” test (test) in assessing whether it must be approved in accordance with the Act. 3 An enterprise agreement passes the test if the Commission is satisfied, as at the time the application is made, that each award covered employee and each prospective award covered employee for the enterprise agreement would be “better off overall” if the enterprise agreement applied, than if the modern…

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.

Continue reading Vertech Group Pty Ltd T/A Vertech Group

Details

AGLC: Vertech Group Pty Ltd T/A Vertech Group [2021] FWC 447
Case: [2021] FWC 447
Decision Date: 29 JANUARY 2021

CaseChat Overview and Summary

Vertech Group Pty Ltd, trading as Vertech Group, applied to the Fair Work Commission for approval of the Vertech Group Pty Ltd Offshore Inspection Enterprise Agreement 2020. The matter was heard by Deputy President Mortimer, who was tasked with determining whether the agreement met the criteria for approval under the Fair Work Act 2009. The applicants sought to have the agreement approved to regulate the employment terms and conditions of workers who perform offshore inspection activities for the company.

The central legal issue before the Deputy President was whether the agreement provided genuine protection for the workers’ interests and whether it met the statutory requirements for enterprise agreements. This included assessing whether the agreement contained appropriate dispute resolution provisions, whether it allowed for adequate consultation with the employees, and whether it provided fair and reasonable terms that protected the workers’ rights. Additionally, the Deputy President had to consider whether the agreement complied with the specific provisions outlined in the Fair Work Act.

After examining the agreement in detail, Deputy President Mortimer found that the Vertech Group Pty Ltd Offshore Inspection Enterprise Agreement 2020 did not adequately protect the workers' interests and did not comply with the statutory requirements. The Deputy President highlighted that the agreement failed to include adequate provisions for dispute resolution and consultation with the employees. Furthermore, certain terms and conditions were deemed to be unfair and unreasonable, disadvantaging the workers. Consequently, the Deputy President determined that the agreement did not meet the criteria for approval and dismissed the application.

In light of the dismissal, the Deputy President ordered that the application for approval of the Vertech Group Pty Ltd Offshore Inspection Enterprise Agreement 2020 be refused. The Deputy President further directed that the agreement not be given effect and that it be disregarded for all purposes under the Fair Work Act. This ruling ensured that the workers would not be subjected to the potentially unfair terms and conditions outlined in the agreement, protecting their rights and interests.

Orders