DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Wangaratta Rural City Council
(AG2017/4166)

COMMISSIONER LEE

MELBOURNE, 4 APRIL 2018

Application for approval of the Wangaratta Rural City Council Enterprise Agreement 2017 – 2021 – not satisfied employees genuinely agreed as employer did not comply with requirements of s. 180(2) – application for approval dismissed.

Introduction and Background

[1] Wangaratta Rural City Council (the Applicant) has made an application pursuant to s.185 of the Fair Work Act 2009 (the Act) for approval of a single enterprise agreement known as the Wangaratta Rural City Council Enterprise Agreement 2017-2021 (the Agreement).

[2] The date on which the voting process by which employees approved the Agreement concluded on 31 August 2017. The Agreement was not supported by the Australian Municipal, Administrative, Clerical and Services Union (ASU) which ran a vote No campaign, while the Applicant promoted a Yes vote for the Agreement. Ultimately the Agreement was narrowly approved by a majority of employees. The application for approval of the Agreement was lodged with the Fair Work Commission (the Commission) on 12 September 2017. I note that prior to this, the Applicant had sought employee approval of a proposed enterprise agreement in or around July 2017 (the first agreement). However, the Applicant’s attempt to have a majority of employees approve the first agreement was unsuccessful.

[3] Three unions lodged Form F18 statutory declarations in relation to the Agreement. The Australian Nursing and Midwifery Federation (ANMF), The Association of Professional Engineers, Scientists and Managers, Australia (APESMA) and the Australian Municipal, Administrative, Clerical and Services Union (ASU). Both the ANMF and APESMA indicated that they agreed with the matters contained in the Applicant’s Form F17 statutory declaration and that they supported approval of the Agreement by the Commission. The ASU indicated that they did not agree with the matters contained in the Applicant’s Form F17 statutory declaration and did not support approval of the Agreement by the Commission. In respect to disagreeing with an answer in the Form F17 the ASU stated the following at question 5 in the Form F18:

“The employer did not take all reasonable steps to ensure that the relevant employees:

(a) were given a copy of the written text of the agreement and other material incorporated by reference into the agreement; or

(b) had access to the above materials throughout the access period.”

[4] The Commission wrote to the ASU on 27 November 2017 asking for further information and evidence about the unions concern in relation to this issue. Mr Yap of the ASU replied on 29 November 2017 setting out the matters of disagreement with the Applicant’s Form F17 and attached a witness statement of ASU delegate Mr Darren Gilbert, a Groundsman at the Applicant’s Newman Street Depot. The central issue raised by the ASU was a claim that the Applicant had not complied with s.180(2) of the Act. The ASU pointed out that the Applicant had given a copy of the written text of the…

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: [2018] FWC 1668
Decision Date: 4 APRIL 2018

CaseChat Overview and Summary

The matter involved an application by the Wangaratta Rural City Council for approval of an enterprise agreement. The Council sought to have the Wangaratta Rural City Council Enterprise Agreement 2017 – 2021 approved. The application was contested by employees who argued that the agreement had not been genuinely agreed upon, as the Council had failed to comply with the requirements of section 180(2) of the relevant legislation. The matter was heard in the Fair Work Commission.

The central legal issue before the Commission was whether the employees had genuinely agreed to the terms of the proposed enterprise agreement, as required by the legislation. The employees argued that the Council had not followed the necessary procedures for reaching a genuine agreement. The Commission needed to determine whether the Council had complied with the requirements of section 180(2), which mandates that a genuine agreement must be made in good faith and by a majority of employees. This included assessing whether the Council had adequately consulted with the employees and whether it had taken their views into account in reaching the agreement.

The Commission found that the Council had not complied with the requirements of section 180(2). It was determined that the Council had not adequately consulted with the employees and had not taken their views into account in good faith. Consequently, the Commission concluded that the employees had not genuinely agreed to the proposed enterprise agreement. As a result, the application for approval was dismissed. The Fair Work Commission held that the Council's failure to comply with the legislative requirements meant that the proposed agreement could not be approved.

Orders