FWC REJECTS APPROVAL OF AGREEMENT FOR COMPANY REFUSING TO COMPLY WITH THE ACT
It is with great disappointment that we advise the FWC has rejected the application to approve the Broome/Truscott Agreement because the company, in conjunction with the PC, refused give a simple undertaking that would ensure the Agreement could be lawfully approved.
PROPOSED AGREEMENT FOUND TO BE UNLAWFUL
Deputy President Roberts rejected the approval because he found, and issued a decision accordingly, that the Agreement does not comply with the Fair Work Act.
Attached is the decision.
An enterprise agreement must comply with the law, and this one was held to not comply. Any Agreement that does not comply with the law cannot be approved by the FWC.
The non-compliance relates to the union’s basic right to initiate a dispute in its own right. The relevant sections of the Fair Work Act are 190 and 186(6). Section 190 precludes an Agreement from being approved if it does not comply with section 186. This agreement was found by the FWC to not comply.
COMPANY REFUSES FWC REQUEST FOR UNDERTAKING
As you can see from the attached decision, the Deputy President, at para [6], noted that the “AFAP urged the (company) to deal with the issue by way of an Undertaking under s 190 of the Act”.
Further, at para [7], the Deputy President says “I expressed a concern that the proposed term may not meet the requirements of section 186(6) (of the Act). [T]he (company) declined to provide an Undertaking in relation to clause 39”.
In summary, the Deputy President’s concern, is at para [16]. “Clause 39.1.3 excludes the capacity of the Union to initiate the disputes process … in their own right and thereby excises an entire category of disputes from the reach of the dispute and grievance procedure to settle disputes about any matters arising under the Agreement.”
The Deputy President then notes at para [17] that “The company did not want to proffer an Undertaking to address the issue”.
PC PROTESTS APPROVAL OF THE AGREEMENT
Although the AFAP and the Deputy President urged the company to correct the non-compliance by making a simple undertaking to ensure the Agreement was legal, it would not, and moreover at para [8] “that they [the PC] opposed the position advanced by the AFAP and that if there any changes to the proposed Agreement … made by way of an Undertaking [by the Company] they would not accept them and would ‘protest (the Agreement’s) approval”.
FWC FORCED TO NO OTHER OPTION
The bull-headed approach taken by the company and the PC failed to understand that the AFAP was not proposing ‘changes’ to the Agreement but rather a way forward to bring the Agreement up to compliance so that it was able to be approved.
Without the company giving the necessary undertaking it was inevitable that the Agreement would not be approved, as is the case now. Had the company and the PC been sensible about this issue and applied the simple fix we proposed, the Agreement would have been approved.
This is exemplified at para [18] where the FWC had no option but to dismiss the approval of the Agreement. Had the company agreed to the Undertaking sought, and the PC had not “protested the Agreement’s approval” the Agreement would have been in place NOW.
The decision of the Deputy President rebukes the misinformation spread by the company and the PC that the AFAP is “holding up the Agreement”. The AFAP does not make the law, but the company is obliged to comply with the law. Further, the law is not something that can be “surveyed away”.
Similarly, contrary to what was also said of the AFAP of trying to change the Agreement, that is false. The company, the PC, the AFAP and the FWC all must comply with the law, and the FWC has held the Agreement does not comply with the law because it does not comply with the Fair Work Act – no matter the spin the company and the PC may try to put on it, and about the AFAP.
The concern raised by the AFAP, and ignored by the company and the PC, has played out the only way it could if the Agreement did not comply with the Act, and the company refuses to address that, even when brought to their attention by the FWC.
IT COULD HAVE BEEN AVOIDED … SO WHERE TO NOW?
We restate, all the company had to do was offer the Undertaking sought by the Deputy President, and for the PC to not “protest its approval”, or take any other irrational actions.
What is alarming is that the AFAP “reached out” to the highest level in the company well prior to this decision being handed down asking at that level to intervene and ensure the Agreement was approved. That approach from the AFAP was plainly and flatly rejected. We now see the consequence.
Fortunately, the simple fix remains – the company can reapply for approval providing the necessary undertaking. It really is that simple.
We will keep members updated.