Bench quashes agreement: not 'genuinely agreed' to

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Bench quashes agreement: not 'genuinely agreed' to

A FWC full bench has quashed approval of an enterprise agreement after finding employees had not 'genuinely agreed' to it.

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A Fair Work Commission full bench has quashed approval of an enterprise agreement after finding employees had not 'genuinely agreed' to it.

The Australian Workers’ Union appealed a decision involving Professional Traffic Solutions. In the original decision Commissioner Gregory approved the Professional Traffic Solutions Pty Ltd Enterprise Agreement 2017.

According to the full bench, the commission erred in its original decision because it did not properly consider whether the agreement was ‘genuinely agreed’ to by employees as required by s186 of the Fair Work Act. 

According to s188, an agreement is genuinely agreed to only if the commission is satisfied the employer complied with the pre-approval steps listed in s180 which include ensuring employees understand the terms of an agreement.

Did employees ‘genuinely agree’?


The union argued that the commissioner failed to properly consider whether the employer complied with the requirements of s180. It submitted the workers could not have genuinely agreed because the agreement did not pass the better off overall test (BOOT).  According to s193, the BOOT requires employees to be better off overall under the agreement when compared with the relevant modern award.

The FWC granted the appeal on the grounds the original decision failed to consider if the workers had genuinely agreed, saying it was unnecessary for it to consider any other grounds of appeal.

“A failure of the commission to make findings, to the requisite standard, that s180(5) has been satisfied, is a matter going directly to the jurisdiction of the commission to approve an enterprise agreement,” said deputy president Asbury.

“It follows from our conclusion that the union’s first ground of appeal must be upheld, as the commissioner’s decision in this jurisdictional respect is infected by appealable error.”

Read the judgment


Australian Workers' Union, The v Professional Traffic Solutions Pty Ltd [2018] FWCFB 6333
 
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