An employer can unilaterally withdraw an agreement approval application

In this decision the Full Bench considered:

– Whether it was possible for an employer to unilaterally discontinue an application to approve a properly made agreement; and

– Whether it is reasonable to extend time to a bargaining representative to lodge an approval application in a situation where the employer has discontinued their approval application.

The Full Bench found that an employer could discontinue an agreement approval application even though the agreement had properly been made by employees.

In this case the employer had discontinued their approval application when it found what it believed to be an error in one of the clauses. This alleged error had significant cost implications for the employer.

The union opposed the discontinuance on the basis the agreement had been properly made by the employees and the alleged error was not an error at all but a properly negotiated outcome. On appeal the union argued the Act would be severely undermined if an employer was able to withdraw from a properly made agreement. The employer submitted that section 588 of the Act allows any application to be withdrawn.

In deciding the matter FWA considered whether it was possible to unilaterally discontinue an approval application. The Full Bench decided the terms of section 588 “are clear” in that they permit the unilateral discontinuation of an application. They did not believe the terms of section 185 of the Act (requiring a bargaining agent to apply for approval of an agreement) altered this situation.

The Full Bench did believe the Deputy President had erred in not extending time for the approval application made by the union once it was aware the employer was discontinuing their application. The Full Bench found the Deputy President had irrelevantly considered the broader disagreement that had emerged between the parties. Additionally the Full Bench found the Deputy President had not considered all the relevant circumstances before applying his discretion. In the Full Bench’s view the withdrawal of the approval application by the employer was relevant and was not considered.

The Full Bench believed the Deputy President’s discretion miscarried and that when the approval application is heard consideration can be given to whether there is an error in the agreement.