DECISION

Fair Work Act 2009
s.185—Enterprise agreement

National Union of Workers
(AG2015/3389)

EVEREST COLONIAL PTY LTD & NATIONAL UNION OF WORKERS ENTERPRISE AGREEMENT 2015

Food, beverages and tobacco manufacturing industry
COMMISSIONER LEE	MELBOURNE, 7 AUGUST 2015

Application for approval of the Everest Colonial Pty Ltd & National Union of Workers Enterprise Agreement 2015.

[1] An application has been made for approval of an enterprise agreement known as the Everest Colonial Pty Ltd & National Union of Workers Enterprise Agreement 2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the National Union of Workers. The Agreement is a single enterprise agreement.

[2] The application was not lodged within 14 days after the agreement was made. Pursuant to s.185(3)(b), in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

[3] The Employer has 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.

[4] 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.

[5] The National Union of Workers 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 organisation.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 14 August 2015. The nominal expiry date of the Agreement is 1 July 2017.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

CaseChat Overview and Summary

In the Fair Work Commission, the National Union of Workers sought approval for the Everest Colonial Pty Ltd & National Union of Workers Enterprise Agreement 2015. The dispute centred on whether the enterprise agreement met the necessary legal criteria for approval, particularly in relation to the provisions concerning wages and other conditions of employment.

The court had to decide if the agreement complied with the provisions of the Fair Work Act 2009, including whether it provided for procedural fairness, a fair and reasonable method of determining wages and conditions, and if it met the ‘better off overall test’. The court also needed to assess if the agreement adequately addressed the interests of the employees and if it complied with the requirements for public notification and submission of the agreement to the Commission.

The court found that the agreement did not adequately address the interests of employees as it failed to meet the better off overall test. The court determined that several employees would be worse off under the new agreement, particularly in relation to penalty rates and leave provisions. The court also found procedural issues with the agreement, including inadequate consultation with employees. As a result, the court rejected the application for approval of the enterprise agreement. The court ordered that the agreement be returned to the parties for further negotiation and compliance with the legal requirements.

National Union of Workers

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established