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[2009] FWA 257
procedural. Application for approval granted; Agreement approved and ordered to operate from 18 September 2009; nominal expiry set at four years from commencement as per clause 3 of the Agreement (see [4]).
Fair Work Australia (Senior Deputy President Richards) approved the Ray White Toowoomba Employee Collective Agreement 2009 on 11 September 2009. The agreement was made during the statutory bridging period, so the transitional modifications to the Fair Work Act were applied. The decision-maker was satisfied that the statutory requirements in sections 186, 187 and 188 were met. The agreement was declared to operate from 18 September 2009 and to expire nominally four years after commencement.
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1,391 words · generated 17/06/2026
An employer-entity, Memento Vivere Pty Ltd ATF Honeste Vivere Unit Trust trading as Ray White Toowoomba, lodged an application on 28 August 2009 for approval of a single-enterprise agreement titled the Ray White Toowoomba Employee Collective Agreement 2009 under s.185 of the Fair Work Act 2009 (see [1]). The application fell within the statutory "bridging period" created by the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. Senior Deputy President Richards considered the application and explicitly took into account the effect of Schedule 7 of the Transitional Act on Part 2-4 of Chapter 2 of the Fair Work Act (see [2]). After assessment, the Senior Deputy President recorded being satisfied that the requirements of ss.186, 187 and 188 of the Fair Work Act that were relevant to the application had been met (see [3]). Consequently the agreement was approved; the decision states the agreement will operate from 18 September 2009 and records a nominal expiry of four years from commencement as stipulated in clause 3 of the agreement (see [4]).
2 cited instruments linked from this judgment.
This is an administrative approval decision made by Fair Work Australia. It is procedural in character, resolving whether the statutory conditions for approval existed and, upon satisfaction, finalising commencement and nominal expiry dates.
The decision rests on two linked propositions recorded in the written decision.
The applicable statutory framework. The agreement was made during a transitional bridging period. The decision-maker therefore had to assess the application against Part 2-4 of Chapter 2 of the Fair Work Act 2009 as modified by Schedule 7 of the Transitional Act (see [2]). That is a statement of the statutory rule governing how agreements formed in the bridging period are to be treated.
Satisfaction of statutory prerequisites. The Act requires certain conditions to be met before approval is granted. The decision records an express finding: "I am satisfied that each of the requirements of sections 186, 187 and 188 of the Act that are relevant to this application for approval have been met" (see [3]). Sections 186–188 contain the core statutory tests relevant to approval under s.185. Having recorded satisfaction of those statutory requirements, the decision follows the statutory mechanism for approval and commencement under s.54 (see [4]).
No extended discretionary reasoning or novel legal interpretation is articulated in the text. The decision is concise: the applicant applied under the correct provision, the decision-maker applied the transitional modifications, found the statutory criteria met, and approved the agreement with dates for commencement and nominal expiry specified.
Before this decision there was a framework for approving enterprise agreements under the Workplace Relations and transitional instruments; the Transitional Act and Schedule 7 set out how agreements formed during the bridging period are to be treated. The decision confirms straightforward application of that framework: when an agreement is made in the bridging period, the modified provisions in Schedule 7 must be taken into account when applying Part 2-4 of the Fair Work Act (see [2]).
After this decision the immediate legal effect is limited: it approves a single agreement and records the application of the transitional regime in that instance. The decision does not alter statutory law or create new common law principles. It demonstrates the administrative practice that where a decision-maker is satisfied ss.186–188 are met, approval follows and commencement is fixed under s.54 (see [3]–[4]). The decision is a discrete, fact-specific application of the statutory regime rather than a precedent-making exposition of new law.
Passage (para [1]): "An application pursuant to s.185 of the Fair Work Act 2009 was made on 28 August 2009 by as Memento Vivere Pty Ltd ATF Honeste Vivere Unit Trust ... for the approval of a single enterprise agreement known as the RAY WHITE TOOWOOMBA EMPLOYEE COLLECTIVE AGREEMENT 2009."
Plain English: The employer formally asked Fair Work Australia to approve its enterprise agreement on 28 August 2009 under the statute that governs agreement approvals.
Passage (para [2]): "The Agreement was made during the bridging period ... Accordingly, when considering whether to approve the Agreement the provisions of Part 2-4 of Chapter 2 of the Act as modified by Schedule 7 of the Transitional Act have been taken into account."
Plain English: Because the agreement was formed during a special transitional period, the decision-maker applied the modified legal rules set out for that period when deciding the approval application.
Passage (para [3]): "I am satisfied that each of the requirements of sections 186, 187 and 188 of the Act that are relevant to this application for approval have been met."
Plain English: The decision-maker checked the statutory requirements needed to approve the agreement and concluded they were all satisfied.
Passage (para [4]): "Consequently, the Agreement is approved and, in accordance with s.54 of the Act will operate from 18 September 2009. The nominal expiry date of the Agreement is four years from the date of commencement as stipulated in clause 3 of the Agreement."
Plain English: The agreement was formally approved; it will start operating from 18 September 2009 and, for record-keeping, its nominal end date is four years after that start date, as the agreement says.
This decision is directly relevant in the following fact patterns:
An employer submits an approval application for a single-enterprise agreement that was made during the bridging period. The decision confirms the need to assess the agreement against the modified provisions in Schedule 7 (see [2]).
A decision-maker is required to determine whether the statutory criteria in ss.186–188 are met. This decision records satisfaction of those requirements and shows the resulting administrative outcome is approval (see [3]–[4]).
Parties or advisers need a clear administrative record of commencement and nominal expiry following approval under s.185/s.54. The decision records those dates (see [4]).
In short, the decision is most directly attracted to routine approval applications falling within the transitional bridging period and where the decision-maker makes the standard statutory findings.
The written decision itself contains no discussion of subsequent judicial or administrative treatment. The document is an administrative approval decision and does not purport to establish a broad legal principle beyond the application of the statutory transitional regime and the statutory prerequisites for approval. The text therefore does not provide information about how later courts or tribunals have treated this decision. To determine subsequent citation or treatment, practitioners should search the Fair Work Commission/Australia database and authorised law reports for later decisions that cite this approval decision or address the same statutory transitional issues.
Because the decision is short and administrative, several broader questions remain outside the text of the decision:
Specific application of ss.186–188. The decision records satisfaction that the requirements were met but does not set out the factual or legal analysis underpinning that conclusion. Where a practitioner needs to understand how the decision-maker evaluated particular statutory criteria (for example, better-off-overall test assessments, representation matters, or compliance with procedural requirements), the decision provides no granular reasoning. One must therefore rely on other published decisions or administrative guidance for detailed methodology.
Interaction with awards and post-approval disputes. The approval notes commencement and nominal expiry dates, but the decision does not discuss effect on award coverage, transitional protections, or potential disputes arising from interpretation of agreement clauses. Those issues would require separate litigation or administrative rulings.
Precedential weight. As an approval decision, this instrument is primarily administrative. Its weight as precedent is limited; the decision does not purport to be a leading statement of law. The extent to which later decision-makers will rely on it for guidance about applying Schedule 7 or assessing ss.186–188 is therefore unclear from this text alone.
Post-approval compliance and enforcement. The decision does not address monitoring of compliance with the agreement terms or remedies for breaches. Those matters lie elsewhere in the Act and in subsequent practice.
For practitioners advising clients, the decision confirms the procedural points: apply the bridging-period modifications when relevant, ensure s.186–188 requirements are demonstrably met, and expect approval to record commencement and nominal expiry dates. Where legal uncertainty remains about the application of those statutory prerequisites, seek more detailed authorities or guidance from fuller decisions and administrative practice notes.
s.185 - Application for approval of a single-enterprise agreement
Memento Vivere Pty Ltd ATF Honeste Vivere Unit Trust (ACN 137 630 525) trading as Ray White Toowoomba
RAY WHITE TOOWOOMBA EMPLOYEE COLLECTIVE AGREEMENT 2009
Application for approval of Ray White Toowoomba Employee Collective Agreement 2009.
[1] An application pursuant to s.185 of the Fair Work Act 2009 (the Act) was made on 28 August 2009 by as Memento Vivere Pty Ltd ATF Honeste Vivere Unit Trust (ACN 137 630 525) trading as Ray White Toowoomba for the approval of a single enterprise agreement known as the RAY WHITE TOOWOOMBA EMPLOYEE COLLECTIVE AGREEMENT 2009.
[2] The Agreement was made during the bridging period as defined in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act). Accordingly, when considering whether to approve the Agreement the provisions of Part 2-4 of Chapter 2 of the Act as modified by Schedule 7 of the Transitional Act have been taken into account.
[3] I am satisfied that each of the requirements of sections 186, 187 and 188 of the Act that are relevant to this application for approval have been met.
[4] Consequently, the Agreement is approved and, in accordance with s.54 of the Act will operate from 18 September 2009. The nominal expiry date of the Agreement is four years from the date of commencement as stipulated in clause 3 of the Agreement.
Printed by authority of the Commonwealth Government Printer
Application for approval granted; Agreement approved and ordered to operate from 18 September 2009; nominal expiry set at four years from commencement as per clause 3 of the Agreement (see [4]).