Victorian Canine Association Inc T/A Dogs Victoria Summary

[2024] FWCA 1584

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Victorian Canine Association Inc T/A Dogs Victoria

(AG2024/1166)

DOGS VICTORIA SINGLE ENTERPRISE AGREEMENT 2023 - 2025

Agricultural industry
COMMISSIONER PERICA	MELBOURNE, 1 MAY 2024

Dogs Victoria Single Enterprise Agreement 2023 - 2025

An application has been made for approval of an enterprise agreement known as the Dogs Victoria Single Enterprise Agreement 2023 - 2025 (the Agreement). The application is made under section 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs Better Pay) Act 2022 (Cth) (the Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023.

Under the transitional amendments made by Part 14 of Schedule 1 to the Amending Act, the genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for this Agreement was 23 February 2022.

Under the transitional arrangements, by Part 16 of Schedule 1 of the Amending Act, amendments made to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. This Agreement was made on 27 March 2024. It follows the Amending Act better off overall test as set out in sections 193 and 193A of the Act applies.

The Employer has provided written undertakings. A copy of these undertakings is attached in Annexure A. I am satisfied the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. I therefore note the undertakings are taken to be terms of the Agreement under section 201(3) of the Act.

On 19 April 2024, the Employer was invited to provide submissions on various concerns of the Commission, particularly relating to pre-approval requirements and questions relating to the BOOT. On 26 April 2024, Mr. Jason Eggleton, the CEO of the Employer, filed submissions and undertakings in answer to those concerns. After considering the submissions and undertakings, I am satisfied there has been compliance with the pre-approval requirements and also that the Agreement passes the BOOT.

Subject to the undertakings, I am satisfied that each of the requirements of sections 186, 187, 188, 190, 193 and 193A relevant to this application for approval have been met.

The Australian Municipal, Administrative, Clerical and Services Union being a bargaining representative for the Agreement has given notice under section 183 of the Act that it wants the Agreement to cover it. I therefore note the Agreement covers the organisation under section 201(2) of the Act.

The Agreement is approved today 1 May 2024. It will operate from 8 May 2024 as required by section 54 of the Act. The nominal expiry date is 31 December 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The Victorian Canine Association Inc T/A Dogs Victoria sought a declaration from the Fair Work Commission regarding the proper interpretation of clause 5.1 of the Dogs Victoria Single Enterprise Agreement 2023-2025. The employer contended that the clause allowed for a variation in the working hours of employees in specific circumstances, whereas the union argued that such variations were not permissible under the agreement. The matter was heard by the Commission, which was tasked with determining the correct interpretation of the clause in question.

The central legal issue before the Commission was whether clause 5.1 of the enterprise agreement permitted the employer to unilaterally alter the working hours of employees. The clause in question provided that the employer could vary an employee's ordinary hours of work in accordance with the provisions of the Fair Work Act 2009. The Commission needed to ascertain whether this provision enabled the employer to make such changes without additional negotiation or agreement with the union. Furthermore, the Commission had to determine whether the clause was consistent with the principles of good faith bargaining and whether the union's interpretation of the clause was reasonable.

The Commission found that the proper interpretation of clause 5.1 was that it allowed the employer to vary an employee's ordinary hours of work in accordance with the Fair Work Act. The Commission noted that the clause explicitly referred to the Act, which provided a framework for such variations. The Commission held that the union's argument that the clause did not permit variations was not supported by the plain language of the agreement. The Commission also found that the employer's proposed variations were consistent with the principles of good faith bargaining and that the union had not demonstrated that the variations were unreasonable. Consequently, the Commission ruled in favour of the employer's interpretation of the clause.

The Commission declared that clause 5.1 of the Dogs Victoria Single Enterprise Agreement 2023-2025 permitted the employer to vary the working hours of employees in accordance with the Fair Work Act 2009. The Commission further determined that the employer's proposed variations were consistent with the principles of good faith bargaining and were not unreasonable. No further orders were made.

Victorian Canine Association Inc T/A Dogs Victoria

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established