National Union of Workers

[2013] FWCA 9657

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

National Union of Workers
(AG2013/9873)

EVEREST COLONIAL PTY LTD & NATIONAL UNION OF WORKERS ENTERPRISE AGREEMENT 2013

Food, beverages and tobacco manufacturing industry
DEPUTY PRESIDENT KOVACIC	MELBOURNE, 9 DECEMBER 2013

Application for approval of the Everest Colonial Pty Ltd & National Union of Workers Enterprise Agreement 2013.

[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 2013 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by the National Union of Workers (NUW). The Agreement is a single-enterprise agreement.

[2] The application was lodged outside the 14 day time period specified in s.185(3)(a) of the Act. Having received correspondence from the NUW and Everest Colonial Pty Ltd outlining reasons for why the application was lodged late, I am satisfied, with regards to s.185(3)(b) of the Act, that in all the circumstances it is fair to extend the period for lodging the application to 22 October 2013. Of note, in that regard, was the employer’s advice that there has been no change to the number or composition of the employee group since the Agreement was approved by employees.

[3] Subject to concerns that have been addressed by way of undertakings, I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act, as are relevant to this application for approval, have been met.

[4] As noted, pursuant to s.190(3), I have accepted undertakings from Everest Colonial Pty Ltd. In accordance with s.191(1) of the Act the undertakings are taken to be a term of the Agreement. A copy of the undertakings are attached to this decision.

[5] 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) of the Act I note that the Agreement covers this organisation.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 16 December 2013. The nominal expiry date of the Agreement is 1 July 2015.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involved an application by the National Union of Workers for the approval of the Everest Colonial Pty Ltd & National Union of Workers Enterprise Agreement 2013. The primary dispute centred on the terms and conditions of employment set forth in the agreement, which both parties had negotiated. The Commission was tasked with determining whether the agreement met the necessary legal standards for approval under the Fair Work Act 2009.

The legal issues the court had to decide included whether the agreement complied with the procedural requirements set forth in the Fair Work Act, and if it contained all the mandatory terms prescribed by the Act. The Commission also had to assess whether the agreement would have an adverse effect on employees and if it was genuinely negotiated. Furthermore, the court needed to consider whether the agreement included appropriate mechanisms for dispute resolution and whether it was in the best interests of the employees.

In reaching its decision, the Fair Work Commission examined the negotiation process and the content of the agreement. It found that the agreement was genuinely negotiated and contained all the mandatory terms. The Commission determined that the agreement did not have an adverse effect on employees and included appropriate dispute resolution mechanisms. Consequently, the Commission approved the agreement, recognising its compliance with the statutory requirements and its benefits to the employees. The decision was made in the interest of maintaining fair and efficient workplace relations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established