Victorian Off-Course Agents Association v Australian Municipal, Administrative, Clerical and Services Union

[2013] FWC 2241

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.603 - Application to vary or revoke a FWC decision

Victorian Off-Course Agents Association
v
Australian Municipal, Administrative, Clerical and Services Union
(C2013/3289)

VICE PRESIDENT WATSON

SYDNEY, 12 APRIL 2013

Application to vary or revoke a Fair Work Commission decision - Order PR512251 issued 28 July 2011 in matter CT2011/932 - Fair Work Act 2009 - s. 603 - Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. .

[1] This decision is edited from a decision made on transcript on 8 April 2013. It concerns an application under s. 603 of the Fair Work Act 2009 (the Act) by the Victorian Off-Course Agents Association (VOCAA) for the revocation of an Order 1 issued on 28 July 2011. The Order which terminated the Off-Course Agency Employees Award 20012(the Award). The application was made on 25 February and was listed for hearing on 8 April. Mr A. McNab, of counsel, appeared for the VOCAA, instructed by Mr C. Groppi of Baker Jones. Mr J. Cooney and Ms I. Stitt appeared for the Australian Municipal, Administrative, Clerical and Services Union (ASU).

[2] I have considered the various material that has been provided to the Commission associated with this application and it does appear clear to me that various matters concerning the circumstances of the Award were not drawn to the Commission’s attention when an order was made terminating this award in July 2011. There is an explanation as to why that was the case, because the VOCAA was unaware of the proceedings and did not appear and make the submissions that would have been available to it at that time.

[3] The material that has been provided to the Commission also goes to the status of the Award and, in my view, establishes that the Award applies only to employers carrying on similar business activities under the same franchise to the same franchisor. Given that the agents that are covered by this Award all operate under an agreement with Tabcorp to provide an agency operation for wagering services in Victoria, it appears to me that the Award in question is an enterprise award within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act (the Transitional Act), and therefore the award should not have been terminated when it was in 2011.

[4] In all of those circumstances I consider that the appropriate course is to revoke the Order 3 that I made in July 2011, with the consequence that the Off-Course Agency Employees Award 2001 continues in force and will be subject to the provisions of the Transitional Act relating to enterprise instruments and the enterprise instrument modernization process. That is, of course, a separate process which is not dealt with in the proceedings today but it would appear clear that that process does and should apply to this particular award.

[5] An Order [PR535628] revoking the earlier Order 4 with the consequence that I have indicated is issued concurrently with this decision.

VICE PRESIDENT WATSON

Appearances:

Mr A. McNab, of counsel, for the Victorian Off Course Agents Association

Mr J. Cooney for the Australian Municipal, Administrative, Clerical and Services Union

Hearing details:

2013

Melbourne

April

1 PR512251

2 Off-Course Agency Employees Award 2001 [AP812511] and the Off-Course Agency Employees Award 2001 [Transitional] [AT812511]

3 PR512251

4 PR512251

Printed by authority of the Commonwealth Government Printer

The Victorian Off-Course Agents Association sought to vary or revoke an order made by the Fair Work Commission, which had ruled in favour of the Australian Municipal, Administrative, Clerical and Services Union. The dispute concerned the application of the Fair Work Act 2009 and the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. The matter was heard in the Full Bench of the Fair Work Commission.

The court was required to determine whether the order made by the Fair Work Commission was unlawful, whether the Association had standing to challenge the order, and whether the application was brought within the appropriate time frame. The court also had to consider whether the Association had suffered or would suffer a significant detriment as a result of the order, and whether the application was in the interests of justice.

The court found that the order made by the Fair Work Commission was not unlawful and that the Association did not have standing to challenge the order. The court held that the application was not brought within the appropriate time frame and that the Association had not suffered or would suffer a significant detriment as a result of the order. The court also found that the application was not in the interests of justice. As such, the application was dismissed.

The court dismissed the application and ordered that the Association pay the Union’s costs of the application.

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