DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

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

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

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 1   [2021] FWCA 5092

 2   AE512781