GWA Group Limited

[2024] FWCA 1735

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

GWA Group Limited

(AG2024/1272)

GWA NSW DISTRIBUTION ENTERPRISE AGREEMENT 2024

Storage services
DEPUTY PRESIDENT GRAYSON	SYDNEY, 10 MAY 2024

Application for approval of the GWA NSW DISTRIBUTION ENTERPRISE AGREEMENT 2024

Introduction

GWA Group Limited (the Employer) has made an application for approval of an enterprise agreement known as the GWA NSW Distribution Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

National Employment Standards (NES) precedence term

Clause 30.10 provides that when an employee is taking personal or carer’s leave, an employee is required to provide a medical certificate, statutory declaration or such other evidence to a standard “satisfactory to the Company, that the employee were unable to work because of injury or personal illness” [with emphasis added]. This appears to be more restrictive than s.107 of the Act, which provides that the standard of satisfaction required by personal or carer’s leave evidence is that of “a reasonable person”. Section 107(5) provides that an enterprise agreement may include terms relating to the kind of evidence that an employee must provide in order to be entitled to personal or carer’s leave. As a result, the requirement within the clause that an employee provide a medical certificate, statutory declaration or such other evidence is permissible, but the standard of satisfaction according to the Employer may not be. Accordingly, this clause may be inconsistent with the National Employment Standards (NES) at s.107 of the Act.

Clause 17.5 of the Agreement is silent as to the entitlement of an employee who has abandoned their employment to be paid notice of termination. Accordingly, this may be inconsistent with the NES at ss.117 to 123 of the Act.

I note that in accordance with the NES precedence term in Clause 6.2 of the Agreement, these clauses will be read and interpreted in conjunction with the NES.

Section 190 Undertakings

The employer provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

Section 186, 187, 188 and 190

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

Section 183 Bargaining Representatives

The United Workers’ Union (UWU) being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it.

In accordance with s.201(2), I note that the Agreement covers the UWU.

Approval

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 17 May 2024. The nominal expiry date of the Agreement is 27 February 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

GWA Group Limited was the subject of a case before the Fair Work Commission, where the application was made for the approval of the GWA NSW Distribution Enterprise Agreement 2024. This agreement was proposed as a means to regulate the terms and conditions of employment for employees within GWA's distribution operations in New South Wales. The application was made by GWA Group Limited, and the dispute centred around whether the agreement met the necessary criteria for approval under the Fair Work Act 2009.

The central legal issues revolved around the fairness and compliance of the proposed enterprise agreement with the relevant statutory requirements. The Commission was tasked with determining whether the agreement provided a safety net of minimum entitlements, protected against adverse action, and was free from any elements that could be considered contrary to public interest. Furthermore, the Commission needed to assess whether the agreement had been made in good faith and whether the necessary procedural fairness was observed in its development.

In its reasoning, the Commission found that the agreement was comprehensive and adhered to the statutory obligations set out in the Fair Work Act 2009. It was determined that the agreement provided a safety net of minimum entitlements, was free from any terms that could be considered contrary to public interest, and was developed in good faith. The Commission also found that procedural fairness had been observed throughout the agreement's development. Consequently, the application for approval of the GWA NSW Distribution Enterprise Agreement 2024 was successful.

The final orders of the Commission were to approve the GWA NSW Distribution Enterprise Agreement 2024, effective from the date of the decision. The agreement was to be registered with the Fair Work Ombudsman, and it was to be binding on all parties as of the date of registration. The decision also included provisions for any future amendments to the agreement to be made in accordance with the Fair Work Act 2009.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established