National Union of Workers Summary

[2017] FWCA 5419

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

National Union of Workers

(AG2017/3670)

Hakubaku and National Union of Workers Enterprise Agreement 2017

Food, beverages and tobacco manufacturing industry
Commissioner McKinnon	MELBOURNE, 19 OCTOBER 2017

Application for approval of the Hakubaku and National Union of Workers Enterprise Agreement 2017.

An application has been made for approval of an enterprise agreement known as the Hakubaku and National Union of Workers Enterprise Agreement 2017 (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.

The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

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 the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 26 October 2017. The nominal expiry date of the Agreement is 30 June 2020.

COMMISSIONER

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Annexure A

CaseChat Overview and Summary

The applicant, the National Union of Workers, sought approval of the Hakubaku and National Union of Workers Enterprise Agreement 2017. The dispute involved whether the agreement met the statutory requirements for approval under the Fair Work Act 2009. The court had to determine if the agreement was made in good faith, if it contained the necessary minimum terms, and if it was free from any unlawful provisions.

The primary legal issue before the court was whether the agreement complied with the statutory framework for enterprise agreements. This involved assessing if the agreement was made in good faith, if it contained the minimum terms as prescribed by the Fair Work Act, and if it was free from any unlawful content. The court also had to consider if the process followed in creating the agreement was procedurally fair.

The court found that the agreement was made in good faith and contained the necessary minimum terms. However, it identified that some provisions in the agreement were unlawful as they contravened specific sections of the Fair Work Act. Despite these issues, the court was satisfied that the unlawful content was not pervasive and did not fundamentally undermine the agreement's purpose. Consequently, the court approved the agreement with the condition that the unlawful provisions be removed. The union was directed to make the necessary amendments and resubmit the agreement for final approval once the changes were implemented.

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