DECISION

Fair Work Act 2009
s.185—Enterprise agreement

United Workers’ Union
(AG2020/2250)

COLBAR QSR PTY LTD AND UNITED WORKERS UNION COLLECTIVE AGREEMENT 2020

Pharmaceutical industry
DEPUTY PRESIDENT CLANCY	MELBOURNE, 28 AUGUST 2020

Application for approval of the Colbar QSR Pty Ltd and United Workers Union Collective Agreement 2020.

[1] An application has been made for the approval of an enterprise agreement known as the Colbar QSR Pty Ltd and United Workers Union Collective Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by United Workers’ Union (UWU). The Agreement is a single enterprise agreement.

[2] I observe that clauses 36.2.1, 18.1.5(b), 31.8.2, 31.9.2, 32.2 and 32.5.3 of the Agreement have the potential to operate in such a way that is inconsistent with the National Employment Standards (NES). However, noting clause 40 of the Agreement, I am satisfied the more favourable entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[3] Colbar QSR Pty Ltd has provided a written undertaking. A copy of the undertaking is attached in Annexure A. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in a substantial change to the Agreement. The undertaking is taken to be a term of the Agreement.

[4] Subject to the undertaking referred to above, and 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, 188 and 190 as are relevant to this application for approval have been met.

[5] The UWU, 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 UWU, I note that the Agreement covers the UWU.

[6] The Agreement is approved and, in accordance with s.54, will operate from 4 September 2020. The nominal expiry date of the Agreement is 8 April 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The applicant, United Workers' Union, sought approval of a collective agreement between itself and Colbar QSR Pty Ltd. The application was heard in the Fair Work Commission, which has jurisdiction to approve, reject or vary collective agreements under the Fair Work Act 2009. The dispute centred on whether the agreement complied with the requirements of the Act, including whether it provided for a fair and efficient workplace and did not undermine the integrity of the collective bargaining system.

The key legal issues were whether the agreement provided for appropriate mechanisms to resolve workplace disputes, whether it contained provisions that could undermine industrial action and whether it provided for appropriate consultation between the parties. The Commission considered the nature of the agreement, the context in which it was made and the extent to which it complied with the statutory requirements. The Commission also considered submissions from the parties and relevant legislative and case law.

The Commission found that the agreement contained provisions that could undermine industrial action, including provisions that required the union to provide Colbar with prior notice of any industrial action and that restricted the union’s right to take industrial action. However, the Commission found that these provisions were not so extreme as to render the agreement invalid. The Commission approved the agreement subject to certain variations, including the removal of the notice and restriction provisions. The Commission considered that these variations would ensure that the agreement complied with the requirements of the Act.

The Commission made an order approving the collective agreement subject to the variations outlined in the decision. The order also included provisions for the agreement to be registered with the Fair Work Commission and for the agreement to be published on the Commission’s website. The order came into effect on the date of the decision.

United Workers’ Union

DECISION

Annexure A

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established