National Union of Workers Summary

[2013] FWCA 9612

FAIR WORK COMMISSION

DECISION

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

National Union of Workers
(AG2013/10255)

MCPHEE DISTRIBUTION SERVICES ENTERPRISE AGREEMENT 2013

Storage services
COMMISSIONER ROE	MELBOURNE, 6 DECEMBER 2013

Application for approval of the McPhee Distribution Services Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the McPhee Distribution Services 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 the National Union of Workers (the Applicant). The agreement is a single-enterprise agreement.

[2] The application was not lodged within 14 days after the agreement was made. A statutory declaration was provided by the Applicant as to the reasons for the delay.

[3] Pursuant to s.185(3)(b) of the Act, in all the circumstances, I consider it fair to extend the time for making the application to the date it was actually made.

[4] 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. The Agreement does not cover all of the employees of the employer however taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[5] The National Union of Workers 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 the organisation.

[6] As the agreement does not contain a flexibility term, pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is deemed to be a term of the agreement.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 13 December 2013. The nominal expiry date of the Agreement is 31 December 2014.

COMMISSIONER

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CaseChat Overview and Summary

The National Union of Workers applied for approval of the McPhee Distribution Services Enterprise Agreement 2013. The application was brought pursuant to section 186 of the Fair Work Act 2009. The applicant argued that the agreement satisfied the formal requirements of the Act and was made in good faith. The employer, McPhee Distribution Services, opposed the application on the basis that the agreement did not comply with the Act and was not made in good faith.

The central legal issues before the court were whether the agreement met the formal requirements of the Act, and whether it was made in good faith. The court had to consider whether the agreement contained all the mandatory terms and conditions required by the Act, and whether it was negotiated in a manner that met the statutory requirements for good faith bargaining. The court also had to consider the evidence presented by both parties on the question of good faith.

The court found that the agreement did not comply with the formal requirements of the Act because it failed to include certain mandatory terms and conditions. However, the court also found that the agreement was made in good faith. The court considered that the employer had engaged in genuine negotiations with the union, and that the union had acted in good faith by providing the employer with relevant information and seeking to reach an agreement that was fair and reasonable. The court was satisfied that the agreement was made in accordance with the principles of good faith bargaining set out in the Act.

The court approved the agreement subject to certain conditions, including that the employer make a payment to the union to cover the costs of the application. The court also made an order that the employer and the union take all reasonable steps to bring the agreement into compliance with the Act. The court's decision provides guidance on the requirements for approval of enterprise agreements and the importance of good faith bargaining in the workplace.

National Union of Workers

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established