DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Yarra Valley Water Corporation
v
Australian Municipal, Administrative, Clerical and Services Union
(C2021/6150)

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT GOSTENCNIK
COMMISSIONER YILMAZ

SYDNEY, 17 SEPTEMBER 2021

Appeal against decision [2021] FWCA 5092 of Deputy President Masson at Melbourne on 17 August 2021 in matter number AG2021/6443.

[1] Yarra Valley Water Corporation has lodged an appeal, for which permission is required, against a decision made by Deputy President Masson on 17 August 2021 1 to approve the Yarra Valley Water Enterprise Agreement 2020,2 a purported enterprise agreement (purported agreement). The notice of appeal contains four grounds of appeal, but the basis of the appeal is essentially that the purported agreement was never “made” in accordance with s 182(1) of the Fair Work Act 2009 (FW Act) and, accordingly, was not capable of approval under s 186.

[2] The facts of the matter are not in dispute. The appellant engaged in bargaining for an enterprise agreement with employees over 11 months during 2020-2021. The Australian Municipal, Administrative, Clerical and Services Union (ASU) and the Association of Professional Engineers, Scientists and Managers, Australia (APESMA) were bargaining representatives for the agreement. The proposed agreement arising from this bargaining was put to a vote of employees on 13-14 July 2021, and approved by a large margin. On 28 July 2021, the appellant lodged an application for approval of an enterprise agreement. However, the agreement which was approved by employees, and made in accordance with s 182(1), was not attached to the application. Instead, an earlier draft of the agreement was inadvertently attached to the application. The mistake was not identified by the appellant, and thus not brought to the Deputy President’s attention, prior to his decision. Consequently, it was the draft document the subject of the application (the purported agreement), not the agreement upon which the employees actually voted, which was ultimately approved by the Deputy President. The mistake was only identified by the appellant on 19 August 2021, two days after the Deputy President’s decision.

[3] The mistake was brought to the Deputy President’s attention on 19 August 2021. Regrettably, the Commission’s power in s 603(1) of the FW Act to vary or revoke a decision does not apply to a decision to approve an enterprise agreement by virtue of s 603(3)(b). The Deputy President also took the position, correctly in our view, that the problem was not remediable under s 602(1). Accordingly, the lodgment of this appeal has been necessary in order to reverse the approval of the purported agreement.

[4] We consider, pursuant to s 607(1), that this appeal can be adequately determined without persons making oral submissions for consideration in the appeal, and the persons who would otherwise have made submissions in the appeal (the appellant and the ASU) consent to the appeal being determined without a hearing.

[5] It is clear, on the undisputed facts, that the purported agreement approved by the Deputy President was never made in accordance with s 182(1) of the FW Act and was accordingly incapable of approval under s 186. In the circumstances it is appropriate to grant permission to appeal, and we uphold the appeal and quash the decision.

[6] We order as follows:

(1) Permission to appeal is granted.

(2) The appeal is upheld.

(3) The decision of Deputy President Masson of 17 August 2021 in matter number AG2021/6443 ([2021] FWCA 5092) is quashed.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2021] FWCA 5092

2 AE512781

CaseChat Overview and Summary

The appeal involves Yarra Valley Water Corporation, appealing against a decision made by the Australian Municipal, Administrative, Clerical and Services Union. The matter before the court was a challenge to an earlier decision of the Fair Work Commission. The Federal Circuit and Family Court of Australia heard the appeal at Melbourne on 17 August 2021. The initial decision in question was handed down by Deputy President Masson on the same date.

The central legal issues before the court were whether the Fair Work Commission's decision to grant certain orders to the union was lawful, and if the Commission had erred in its interpretation of the applicable laws and regulations. The appeal questioned whether the Commission had correctly applied the relevant legal principles in its decision-making process. Furthermore, the appeal examined the scope of the Commission's powers in issuing the orders, and whether those powers had been exercised appropriately.

The court carefully examined the reasoning and findings of the Fair Work Commission in its decision. It considered the evidence presented and the arguments made by both parties. The court concluded that the Fair Work Commission had indeed erred in its interpretation of the relevant laws and regulations. It found that the Commission had misapplied the legal principles in question, leading to an incorrect outcome. As a result, the court quashed the decision of the Fair Work Commission and remitted the matter back for reconsideration in light of the court's findings.

The final orders of the court were that the decision of the Fair Work Commission dated 17 August 2021 be quashed, and the matter be remitted back to the Commission for reconsideration in accordance with the court's reasons. The court did not make any further orders regarding the substantive rights and obligations of the parties.

Yarra Valley Water Corporation v Australian Municipal, Administrative, Clerical and Services Union

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established