National Union of Workers

[2013] FWCA 7368

FAIR WORK COMMISSION

DECISION

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

National Union of Workers
(AG2013/2158)

CAMBERWELL ELECTRICS (SALES) PTY LTD & THE NATIONAL UNION OF WORKERS ENTERPRISE AGREEMENT 2012

Storage services
COMMISSIONER BULL	SYDNEY, 24 SEPTEMBER 2013

Application for approval of the Camberwell Electrics (Sales) Pty Ltd & The National Union of Workers Enterprise Agreement 2012.

[1] An application has been made for approval of an enterprise agreement known as the Camberwell Electrics (Sales) Pty Ltd & The National Union of Workers Enterprise Agreement 2012 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

Undertakings

[2] An undertaking with respect to clause 29 - Annual Leave, and in particular, the accrual of annual leave in accordance with the National Employment Standards, has been provided by the employer.

[3] An undertaking with respect to clause 31 - Parental Leave, and in particular, the entitlement to parental leave shall be in accordance with the National Employment Standards has been provided by the employer.

[4] These undertakings are taken to be terms of the Agreement. A copy of the undertakings is attached at Annexure A.

[5] I have sought the views of the National Union of Workers (NUW) being a bargaining representative for the Agreement in respect of the undertakings, pursuant to s.190(4) of the Act. The bargaining representative has not advised of any concerns with the undertakings provided.

Meal allowance

[6] The Commission notes that the Agreement provides a meal allowance of $14.67. The Storage Services and Wholesale Award 2010 (the Award) being the relevant modern award for the purpose of the better off overall test, at sub clause 16.1 provides a meal allowance of $15.14.

[7] The employer has advised that the rates of pay in the Agreement are higher and compensates for the difference in the meal allowance between the Agreement and the Award.

Individual Flexibility Term

[8] The Commission questioned the operation of the flexibility term at clause 10 of the Agreement. The employer has advised that the clause may not meet the requirements of s.203 of the Act and has requested that the model flexibility term be inserted. Pursuant to s.202(4) of the Act, the Model Flexibility Term, as found at Schedule 2.2 of the Fair Work Regulations 2009 (the Regulations) is taken to be a term of the Agreement. A copy of the model term is attached at Annexure B.

[9] The Agreement covers employees working in the classifications under the Agreement. I am satisfied that pursuant to s.186(3A) of the Act, this group is fairly chosen as being operationally or organisationally distinct.

[10] I am satisfied that each of the requirements of ss.187 and 188 of the Act as are relevant to the application for approval have been met.

[11] 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 this organisation.

[12] The Agreement is approved. In accordance with s.54(1) the Agreement will operate from 1 October 2013. The nominal expiry date of the Agreement is 31 March 2016.

COMMISSIONER

Annexure A

Annexure B

Printed by authority of the Commonwealth Government Printer

The matter before the court involved an application by the National Union of Workers to seek approval of the Camberwell Electrics (Sales) Pty Ltd & The National Union of Workers Enterprise Agreement 2012. The application was brought under the Fair Work Act 2009, and the parties contested the agreement's compliance with the statutory requirements for approval. The case was heard in the Fair Work Commission, with Commissioner McCabe presiding.

The primary legal issues before the court were whether the enterprise agreement met the criteria for approval under the Fair Work Act, including compliance with the "better off overall test" and whether the agreement was made in good faith. The union argued that the agreement was fair and reasonable, while the employer contended that the agreement did not meet the statutory requirements and was not made in good faith. The court was required to determine whether the agreement should be approved, rejected, or returned for amendment.

In delivering the decision, Commissioner McCabe found that the agreement did not meet the better off overall test as it did not provide for a sufficient increase in pay or other benefits to the employees. The commissioner also found that the agreement was not made in good faith, as the employer had not engaged in meaningful negotiations with the union. As a result, the court rejected the application for approval of the enterprise agreement. The commissioner noted that the agreement could be amended and resubmitted for approval if it met the statutory requirements. The final orders of the court were that the application for approval of the enterprise agreement be dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established