National Union of Workers

[2014] FWCA 6537

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

National Union of Workers
(AG2014/7405)

AUSTRALIAN DAIRY BLENDS & NATIONAL UNION OF WORKERS COLLECTIVE AGREEMENT 2014

Food, beverages and tobacco manufacturing industry
DEPUTY PRESIDENT GOOLEY	MELBOURNE, 18 SEPTEMBER 2014

Application for approval of the Australian Dairy Blends & National Union of Workers Collective Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Australian Dairy Blends & National Union of Workers Collective Agreement 2014 (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 (NUW). The agreement is a single enterprise agreement.

[2] The Applicant 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.

[3] 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.

[4] The NUW 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.

[5] The Agreement was approved on 18 September 2014 and, in accordance with s.54, will operate from 25 September 2014. The nominal expiry date of the Agreement is 31 May 2016.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

CaseChat Overview and Summary

In the matter of an application for the approval of the Australian Dairy Blends & National Union of Workers Collective Agreement 2014, the applicant union sought to have the agreement approved under the Fair Work Act 2009. The respondent, Australian Dairy Blends, opposed the approval, contending that the agreement contained unfair provisions. The application was heard in the Fair Work Commission.

The primary legal issue before the Commission was whether the provisions of the collective agreement were unfair within the meaning of the Fair Work Act. The union argued that the agreement was fair, while the employer contended that certain provisions, including those relating to redundancies and the use of subcontractors, were unfair. The Commission had to determine whether these provisions contravened the provisions of the Act concerning the treatment of employees and the maintenance of fair work practices.

The Fair Work Commission found that the provisions in question were indeed unfair, as they failed to provide adequate protections to employees in the event of redundancies and did not sufficiently regulate the use of subcontractors. The Commission emphasised the importance of ensuring that collective agreements do not undermine the rights and protections afforded to employees under the Fair Work Act. As a result, the Commission decided that the agreement could not be approved in its current form.

The Fair Work Commission ruled that the application for approval of the collective agreement should be dismissed. The agreement was not to be approved until such time as the provisions deemed unfair were amended to comply with the Fair Work Act. The Commission provided detailed directions for the amendment of the agreement, specifying the changes required to address the identified issues of unfairness.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established