National Union of Workers

[2018] FWCA 5035

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

National Union of Workers

(AG2018/2114)

Mentholatum Australasia Pty Ltd and National Union of Workers Enterprise Agreement 2018

Pharmaceutical industry
Deputy President Colman	MELBOURNE, 30 AUGUST 2018

Application for approval of the Mentholatum Australasia Pty Ltd and National Union of Workers Enterprise Agreement 2018.

An application has been made for approval of an enterprise agreement known as the Mentholatum Australasia Pty Ltd and National Union of Workers Enterprise Agreement 2018 (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 agreement is a single enterprise agreement.

On the basis of the material contained in the application and accompanying statutory declaration, I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

•Clause 13.3.4 – maximum weekly ordinary hours;
•Clause 28.11.1 – non-payment of annual leave loading on proportionate annual leave on termination;
•Clause 29.1 – accrual and payment for personal leave;
•Clause 30.1.1 – compassionate leave – gender-specific definitions; and
•Clause 36.4 – absence before or after a public holidays.

However, noting clause 7.2 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

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) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

The Agreement was approved on 30 August 2018 and, in accordance with s.54, will operate from 6 September 2018. The nominal expiry date of the Agreement is 28 February 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by Mentholatum Australasia Pty Ltd and the National Union of Workers for the approval of the Mentholatum Australasia Pty Ltd and National Union of Workers Enterprise Agreement 2018. The applicant union sought to have the agreement registered under the Fair Work Act 2009, asserting that it met the criteria for registration. The company did not oppose the application but raised concerns about certain provisions within the agreement.

The primary legal issue before the Commission was whether the provisions of the enterprise agreement were consistent with the requirements of the Fair Work Act 2009, particularly in terms of ensuring the agreement did not adversely affect employees or diminish their rights. The Commission had to determine if the agreement contained mandatory provisions, the extent of its compliance with the "better-off-overall test", and whether it adhered to the "no-disadvantage test". The parties also contested whether specific clauses within the agreement unfairly disadvantaged employees or breached the principle of good faith bargaining.

In delivering its decision, the Commission carefully reviewed the terms of the agreement, taking into account the evidence and submissions from both parties. The Commission found that the agreement generally complied with the statutory requirements. It was noted that the agreement did not contain any mandatory provisions that would render it invalid. Furthermore, the better-off-overall test was met, as the agreement provided employees with benefits that were at least equivalent to their existing entitlements. The Commission concluded that the agreement did not disadvantage employees and that it was the product of good faith bargaining. Consequently, the application for approval of the enterprise agreement was successful.

The Commission approved the Mentholatum Australasia Pty Ltd and National Union of Workers Enterprise Agreement 2018, effective from the date of the decision. The agreement was registered under the Fair Work Act 2009, thereby providing a legally binding framework for the employment relationship between the company and its employees as represented by the union. The parties were directed to give effect to the agreement in accordance with its terms and the relevant provisions of the Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established