Viq Australia Services Pty Limited - [2024] FWCA 3601

[2024] FWCA 3601

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Viq Australia Services Pty Limited

(AG2024/2464)

VIQ AUSTRALIA SERVICES PTY LIMITED ENTERPRISE AGREEMENT 2024

Industries not otherwise assigned
COMMISSIONER TRAN	MELBOURNE, 15 OCTOBER 2024

Application for approval of the VIQ Australia Services Pty Limited Enterprise Agreement 2024

VIQ Australia Services Pty Limited has applied for approval of an enterprise agreement known as the VIQ Australia Services Pty Limited Enterprise Agreement 2024 under s 185 of the Fair Work Act 2009.
The Agreement is a single enterprise agreement.

Legislative Requirements

Section 186 of the Act sets out the general requirements for the approval of an enterprise agreement. In summary, in relation to a non-greenfields single enterprise agreement, s 186 requires that the Commission must be satisfied that:

· the agreement has been genuinely agreed to by the employees covered by the agreement: s 186(2)(a);

· the terms of the agreement do not contravene s 55 (which deals with interaction between the National Employment Standards and enterprise agreements): s 186(2)(c);

· the agreement passes the better off overall test: s 186(2)(d);

· the group of employees covered by the agreement is fairly chosen, taking into account whether the group is geographically, operationally or organisationally distinct: ss 186(3) and (3A);

· the agreement does not contain unlawful terms or designated outworker terms: ss 186(4) and (4A);

· the agreement has a nominal expiry date that complies with s 186(5); and

· there is a term about settling disputes: s 186(6).

The Commission must also be satisfied of the additional matters in s 187, but these are not relevant considerations for this Agreement.

The comparison award for the Agreement is the Clerks – Private Sector Award 2020.

Concerns

After reviewing the Agreement, the application and supporting documents, and the Commission’s Agreements Teams checklist, I had various concerns with the Agreement, which I raised with VIQ Australia. The Australian Municipal, Administrative, Clerical and Services Union (ASU) also raised concerns in its Declaration Form F18 and in reply to the concerns I had raised with VIQ Australia. I therefore issued directions for submissions and listed the matter for hearing on 29 August 2024.

In summary, the concerns related to:

· whether the Agreement was genuinely agreed; and

· whether the Agreement passed the better off overall test in s 193.

Genuine Agreement & Explanation of Terms

The concerns raised included whether VIQ Australia had complied with its obligation under s180 to explain terms relating to:

· wage increases and the interaction with this Agreement being the result of consolidation of 2 predecessor agreements; and

· personal leave that includes mental health and menstruation leave

In relation to an employer’s obligation to explain terms under s 180, Deputy President Gostencnik (as he then was) in re BGC Contracting[1] summarised the findings of One Key Workforce Pty Ltd v CFMEU[2] as:

1. Compliance with s 180(5) of the Act depends on the circumstances.

2.…

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: [2024] FWCA 3601
Decision Date: 15 OCTOBER 2024

CaseChat Overview and Summary

Viq Australia Services Pty Limited applied to the Fair Work Commission for approval of the VIQ Australia Services Pty Limited Enterprise Agreement 2024. The matter was heard by Deputy President M J Parker. The dispute concerned whether the proposed enterprise agreement complied with the relevant provisions of the Fair Work Act 2009. Specifically, the application raised questions about whether the agreement contained all the required terms and conditions, and whether it met the statutory requirements for minimum entitlements and pay rates.

The legal issues before the Deputy President were whether the proposed agreement satisfied the necessary criteria for approval under the Fair Work Act. This included whether the agreement provided for fair and reasonable terms and conditions of employment, whether it adhered to the prescribed minimum entitlements and pay rates, and whether it contained all the required terms and conditions as specified in the Act. Additionally, the Deputy President needed to determine if the agreement was made in good faith and if it was the product of genuine agreement between the parties.

The Deputy President found that the proposed agreement met all the statutory requirements for approval. The agreement contained all the necessary terms and conditions, provided for fair and reasonable terms and conditions of employment, and adhered to the prescribed minimum entitlements and pay rates. Furthermore, the Deputy President was satisfied that the agreement was made in good faith and represented a genuine agreement between the parties. Consequently, the Deputy President approved the application for the VIQ Australia Services Pty Limited Enterprise Agreement 2024. The Deputy President made orders approving the enterprise agreement as a registered agreement under the Fair Work Act.

Orders