National Union of Workers

[2013] FWCA 7703

The attached document replaces the document previously issued with the above code on 2 October 2013.

The Decision is being amended to fix a typographical error in the Agreement title.

Melissa Nassios

Associate to Commissioner Roe

Dated 7 October 2013

[2013] FWCA 7703

FAIR WORK COMMISSION

DECISION

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

National Union of Workers
(AG2013/9595)

PACIFIC BRANDS DISTRIBUTION SERVICES & NATIONAL UNION OF WORKERS (ALTONA) ENTERPRISE AGREEMENT 2013

Storage services
COMMISSIONER ROE	MELBOURNE, 2 OCTOBER 2013

Application for approval of the Pacific Brands Distribution Services & National Union of Workers (Altona) Enterprise Agreement 2013.

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

[2] I was initially concerned with some aspects of the proposed Agreement and wrote to the company outlining those issues on 30 September 2013. On 1 October 2013 I received a signed undertaking in response to the queries from Peter Nugent, Human Resources Manager - Supply Chain, of Pacific Brands Holdings Pty Ltd. This undertaking now forms part of the Agreement and is kept on the file. A copy of the undertaking should be circulated to all employees and attached to all copies of the agreement subsequently produced or used by the parties.

[3] The undertaking which now forms part of the Agreement is attached.

[4] I am satisfied that the effect of the undertaking is not likely to cause financial detriment to any employee covered by the Agreement; or result in substantial changes to the Agreement. Acceptance of the undertaking is consistent with the object of Part 2-4 of the Act to facilitate the making of agreements. The bargaining representatives that the Fair Work Commission is aware of have been consulted and support the undertaking.

[5] 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.

[6] As the agreement does not contain a consultation term that meets the requirements of the legislation, pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is deemed to be a term of the agreement

[7] 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.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 9 October 2013. The nominal expiry date of the Agreement is 30 June 2016.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The matter before the Fair Work Commission involved an application for the approval of the Pacific Brands Distribution Services & National Union of Workers (Altona) Enterprise Agreement 2013. The dispute arose from disagreements between Pacific Brands Distribution Services and the National Union of Workers regarding the terms and conditions of employment under the proposed enterprise agreement. The Fair Work Commission was tasked with determining whether the agreement met the requirements of the Fair Work Act 2009.

The primary legal issues the Commission had to resolve were whether the enterprise agreement was genuinely bargained, if it included all the mandatory terms required by the Fair Work Act, and if it was in the best interests of the employees. The Commission also needed to consider whether any of the provisions in the agreement unfairly disadvantaged any group of employees, and if the agreement provided for a proper dispute resolution process.

The Commission examined the evidence presented by both parties and assessed whether the agreement had been genuinely negotiated. The Commission found that the agreement had been negotiated in good faith and met the requirements of the Act. It also determined that all the mandatory terms were included and that the agreement was in the best interests of the employees. Furthermore, the Commission was satisfied that no group of employees was unfairly disadvantaged and that the agreement provided for an adequate dispute resolution mechanism. Therefore, the Commission approved the enterprise agreement, ensuring that it would now govern the employment conditions for the affected workers.

The Fair Work Commission ordered the approval of the Pacific Brands Distribution Services & National Union of Workers (Altona) Enterprise Agreement 2013, effective from the date of the decision. This approval meant that the terms and conditions outlined in the agreement would now apply to the relevant employees, providing them with a legally binding framework for their employment.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established