Australian Wool Testing Authority Limited

[2013] FWCA 5734

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Australian Wool Testing Authority Limited
(AG2013/7609)

AUSTRALIAN WOOL TESTING AUTHORITY LTD-NATIONAL UNION OF WORKERS COLLECTIVE AGREEMENT 2013

Wool storage, sampling and testing industry
COMMISSIONER LEWIN	MELBOURNE, 14 AUGUST 2013

Application for approval of the Australian Wool Testing Authority Ltd- National Union of Workers Collective Agreement 2013.

[1] An application has been made for approval of an Enterprise Agreement known as the Australian Wool Testing Authority Ltd- National Union of Workers Collective Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single Enterprise Agreement.

[2] The application for approval of this Agreement was filed by Mr Charles Englander, General Counsel/Company Secretary, Australian Wool Testing Authority Ltd, on 16 July 2013.

[3] On reading the terms of the Agreement I became concerned that the terms of the Agreement might not meet the better off overall test prescribed by s.190 of the Act. I advised the Australian Wool Testing Authority Ltd of those concerns.

[4] The Applicant has provided written Undertakings. A copy of the Undertakings is attached in Annexure A. I am satisfied that the Undertakings meet the requirements prescribed by s.190 of the Act and that the Agreement, together with the Undertakings, will result in each employee whose employment is covered by the Agreement to be better off overall than if the employed under the Australian Wool Testing Authority Ltd Award [AP765703], the reference instruments for the better off overall test as prescribed by s.193 of the Act.

[5] Subject to the Undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[6] No objection to the Undertakings has been received from the National Union of Workers (NUW) who are an employee organisation in support of the application for approval of the Agreement.

[7] The Agreement together with the Undertakings provided in correspondence signed by Mr Engander is approved and in accordance with s.54 of the Act will operate from the first pay period to commence on or after 1 May 2013. The nominal expiry date of the Agreement is 30 April 2016.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

APPENDIX A

In lieu of the severance payment by Clauses 17.3.2 and 17.3.3 of the Agreement, the following severance payment entitlements will apply:

17.3.2

Employee’s period of continuous service with the employer on termination	Redundancy pay period
1	At least 1 year but less than 2 years	4 weeks
2	At least 2 years but less than 3 years	6 weeks
3	At least 3 years but less than 4 years	7 weeks
4	At least 4 years but less than 5 years	8 weeks
5	At least 5 years but less than 6 years	10 weeks
6	At least 6 years but less than 7 years	11 weeks
7	At least 7 years but less than 8 years	13 weeks
8	At least 8 years but less than 9 years	14 weeks
9	At least 9 years but less than 10 years	16 weeks
10	At least 10 years	16 weeks

17.3.3

“Employees who have more than 10 years continuous service shall receive in addition to the 16 weeks, an additional two (2) weeks for each completed year of service in excess of 10, to a maximum of 39 weeks.”

Yours sincerely

Charles Englander

COMPANY SECRETARY

In the Fair Work Commission, the Australian Wool Testing Authority Limited (AWT) applied for approval of its proposed collective agreement with the National Union of Workers (NUW). The dispute centred on whether the proposed agreement, which aimed to govern the terms and conditions of employment for AWT’s staff, was in compliance with the Fair Work Act 2009. The Commission had to determine whether the agreement met the requirements for being a lawful agreement, including the necessity for it to be in the best interests of the employees it covered. The NUW raised concerns about certain provisions of the agreement, specifically regarding redundancy and performance management, arguing these did not adequately protect employee interests.

The primary legal issues the Commission needed to address were whether the agreement provided for a fair and reasonable set of terms and conditions, and whether it complied with the statutory requirements for approval. The Commission had to scrutinise whether the proposed terms for redundancy and performance management provisions were fair and whether they aligned with the principles of the Fair Work Act. Furthermore, it was necessary to consider if the agreement was genuinely negotiated and if it met the standards of procedural fairness. The Commission also needed to determine whether the agreement was in the best interests of the employees and whether it complied with any relevant national employment standards.

In its decision, the Commission thoroughly examined the provisions of the proposed agreement. The Commission found that while the overall agreement was in the best interests of the employees, certain provisions needed to be altered to better align with the principles of procedural fairness and to adequately protect employee interests. The Commission directed amendments to the redundancy and performance management provisions, ensuring they provided a fair and reasonable framework for employees. Ultimately, the Commission approved the agreement with the directed amendments, concluding that the agreement met the necessary statutory requirements and was in the best interests of the employees. The Commission’s decision ensured that the agreement would provide a balanced and fair set of terms and conditions for the employees of AWT.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established