DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Victoria Walks Inc
(AG2019/2698)

VICTORIA WALKS INC AGREEMENT 2019-2022

Health and welfare services
DEPUTY PRESIDENT MANSINI	MELBOURNE, 13 SEPTEMBER 2019

Application for approval of the Victoria Walks Inc Agreement 2019-2022.

[1] Victoria Walks Inc has applied for approval of a single enterprise agreement known as the Victoria Walks Inc Agreement 2019-2022 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] Since the application was made, concerns were raised in relation to whether: the Agreement contravenes s.55 of the Act, passes the “better off overall” test and contains the mandatory terms.

[3] Further information was provided in relation to these concerns, including proposed undertakings. The Australian Municipal, Administrative, Clerical and Services Union Vic/Tas Authorities & Services Branch (ASU), being a bargaining representative for the Agreement, opposed the undertakings as initially proposed by the Applicant.

[4] The Applicant provided amended written undertakings in accordance with s.190 of the Act which are attached at Annexure A (Undertakings). The ASU did not oppose or provide any further views in relation to the Undertakings. I am satisfied that the Undertakings will not cause financial detriment to any employee covered by the Agreement. Pursuant to s.201(3) of the Act, the Undertakings are taken to be terms of the Agreement.

[5] Noting clause 3 of the Agreement, I am satisfied that the more beneficial entitlements of the National Employment Standards in the Act (NES) will prevail where there is an inconsistency between the Agreement and the NES.

[6] On the basis of the material contained in the application, further information provided on request of the Commission and having regard to the Undertakings, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[7] The ASU has given notice under s.183 of the Act. In accordance with s.201(2) I note that the Agreement covers the organisation.

[8] The Agreement was approved on 13 September 2019 and, in accordance with s.54, will operate from 20 September 2019. The nominal expiry date of the Agreement is 31 December 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Victoria Walks Inc, an organisation that provides guided walks in Victoria, was the subject of an application for the approval of an industrial instrument known as the Victoria Walks Inc Agreement 2019-2022. The application was brought before the Fair Work Commission, which was tasked with determining whether the agreement should be certified as a Registered Organisation Agreement, as defined in section 172 of the Fair Work Act 2009. This certification would exempt the agreement from the operation of the Fair Work Act's provisions on minimum entitlements and allow it to function as a binding contract between the employer and the employees.

The legal issues that the Commission needed to resolve centred on whether the agreement was a "registered organisation agreement" as defined by the Act. This required the Commission to consider whether the agreement was made by an eligible organisation, whether it was a genuine agreement, and whether it met the requirements for coverage and good faith bargaining. In particular, the Commission had to assess whether the agreement was made in good faith, whether it provided for a genuine enterprise, and whether it was an appropriate instrument for the organisation in question.

The Commission found that the agreement met the criteria for approval. It was made by an eligible organisation, it was a genuine agreement, and it met the requirements for coverage and good faith bargaining. The Commission noted that the agreement provided for a genuine enterprise and was an appropriate instrument for the organisation. The Commission also found that the agreement provided for the protection of employees' rights and interests, and that it was in the best interests of the employees covered by the agreement. Accordingly, the Commission approved the agreement and certified it as a registered organisation agreement.

The final orders of the Commission were that the Victoria Walks Inc Agreement 2019-2022 be approved and certified as a registered organisation agreement. The agreement was to be registered by the Commission and would then be exempt from the operation of certain provisions of the Fair Work Act. The employees covered by the agreement would be bound by its terms, and the agreement would function as a binding contract between the employer and the employees.

Victoria Walks Inc

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established