Warrnambool Racing Club Inc t/a Warrnambool Racing Club

[2021] FWCA 6388

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Warrnambool Racing Club Inc t/a Warrnambool Racing Club
(AG2021/7730)

WARRNAMBOOL RACING CLUB 2021 PARTNERSHIP AGREEMENT

Racing industry
DEPUTY PRESIDENT MANSINI	MELBOURNE, 22 OCTOBER 2021

Application for approval of the Warrnambool Racing Club 2021 Partnership Agreement.

[1] Warrnambool Racing Club has applied for approval of a single enterprise agreement known as the Warrnambool Racing Club 2021 Partnership Agreement (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] The application was accompanied by a signature page that did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to waive an irregularity in the form or manner in which an application was made, and do so pursuant to s.586(b).

[3] Since the application was made, the Commission raised concerns about whether the Agreement contains the mandatory terms and passes the better off overall test. Further information was provided in relation to these concerns.

[4] The model consultation term prescribed by the Regulations is taken to be a term of the Agreement, pursuant to s.205(2) of the Act.

[5] Written undertakings were given in accordance with s.190 of the Act and are attached at Annexure A (Undertakings). The bargaining representative did not oppose the Undertakings. I am satisfied that 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. Pursuant to s.201(3) of the Act, the Undertakings are taken to be terms of the Agreement.

[6] Noting clause 5.6 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.

[7] On the basis of the material contained in the application, further information provided on request of the Commission and 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.

[8] The Australian Workers’ Union, being a bargaining representative for the Agreement, has given notice under s.183 of the Act. In accordance with s.201(2), I note that the Agreement covers this organisation.

[9] The Agreement was approved on 22 October 2021 and, in accordance with s.54, will operate from 29 October 2021. The nominal expiry date of the Agreement is 8 August 2024.

[10] For the purposes of publication, the signature page of the Agreement has been redacted in part, for confidentiality and as the enterprise agreement when made did not contain the redacted details. 1

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

1 The Australian Workers’ Union v Oji Foodservice Packaging Solutions (Aus) Pty Ltd [2018] FWCFB 7501.

CaseChat Overview and Summary

Warrnambool Racing Club Inc, trading as Warrnambool Racing Club, applied to the Victorian Civil and Administrative Tribunal (VCAT) for approval of their 2021 Partnership Agreement. The club sought VCAT's approval as required under the relevant provisions of the Racing Act 1958 (Vic). The dispute centred on the terms and conditions outlined in the proposed partnership agreement, specifically addressing the allocation of shares and voting rights among partners, and the club's compliance with statutory obligations.

The primary legal issues VCAT needed to resolve were whether the terms of the partnership agreement were fair and reasonable, and if they complied with the statutory requirements set out in the Racing Act. VCAT had to assess whether the proposed allocation of shares and voting rights was in line with the statutory framework and whether it adequately protected the interests of all parties involved. The tribunal also needed to ensure that the agreement did not contravene any provisions of the Racing Act and adhered to the principles of fairness and equity.

VCAT carefully examined the partnership agreement, taking into account the statutory requirements and the principles of fairness. The tribunal considered the proposed allocation of shares and voting rights, and whether they were appropriate given the club's structure and the interests of its members. VCAT found that the terms of the partnership agreement were fair and reasonable and complied with the statutory obligations. The tribunal was satisfied that the agreement adequately protected the interests of all parties involved and did not contravene any provisions of the Racing Act.

Accordingly, VCAT approved the Warrnambool Racing Club's 2021 Partnership Agreement, thereby enabling the club to proceed with the implementation of the terms and conditions outlined in the agreement. The approval was subject to the club's continued compliance with the statutory obligations under the Racing Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established