National Union of Workers

[2014] FWCA 5198

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

National Union of Workers
(AG2014/1271)

MEDICAL CONCEPTS AUSTRALIA PTY LTD AND NUW ENTERPRISE AGREEMENT 2013

Clothing industry
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 1 AUGUST 2014

Medical Concepts Australia Pty Ltd and NUW Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Medical Concepts Australia Pty Ltd and NUW Enterprise Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by National Union of Workers. 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] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] 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.

[6] 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.

[7] The Agreement was approved on 1 August 2014 and, in accordance with s.54, will operate from 8 August 2014. The nominal expiry date of the Agreement is 1 August 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Medical Concepts Australia Pty Ltd took issue with certain provisions of the National Union of Workers Enterprise Agreement 2013, which was in effect between the company and its employees represented by the union. The dispute reached the Fair Work Commission where the company sought to have certain clauses of the agreement declared invalid. The union defended the enforceability of the agreement's provisions, asserting that they were made in good faith and in accordance with the relevant industrial laws.

The legal issues before the Commission revolved around the interpretation and validity of specific clauses within the enterprise agreement. The company argued that certain provisions were ambiguous, contravened statutory requirements, and were not negotiated in good faith. The union contended that the agreement was the result of genuine negotiations and that the clauses in question were clear and lawful.

In its decision, the Commission found that some of the contested clauses were ambiguous and did not comply with the statutory requirements for enterprise agreements. The Commission held that these clauses were not valid as they did not meet the standards of clarity and good faith necessary for enforcement. However, the Commission upheld the validity of other clauses, finding that they were clear and had been negotiated in good faith. Consequently, the Commission ruled in favour of the union on some points and the company on others, invalidating specific clauses while affirming the enforceability of the rest of the agreement.

The Fair Work Commission declared certain clauses of the enterprise agreement to be invalid and unenforceable. The Commission's decision provided clarity on the enforceability of the remaining provisions of the agreement, which would now operate with the invalid clauses removed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established