WADMIN Pty Ltd

[2022] FWCA 2789

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

WADMIN Pty Ltd

(AG2022/3045)

WADMIN Pty Ltd Enterprise Agreement 2021-2023

Meat Industry
COMMISSIONER SPENCER	BRISBANE, 16 AUGUST 2022

Application for approval of the WADMIN Pty Ltd Enterprise Agreement 2021-2023

An application has been made for approval of an enterprise agreement known as the WADMIN Pty Ltd Enterprise Agreement 2021-2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by WADMIN Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

Subject to matters that have been addressed by way of an undertaking, 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.

As noted, pursuant to s.190(3), I have accepted an undertaking from the employer. In accordance with ss.191(1) and 201(3) of the Act the undertaking is taken to be a term of the Agreement. A copy of the undertaking is attached to the Agreement.

The Australasian Meat Industry Employees Union and the Bacon Factories Union of Employees, being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the organisations.

Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 23 August 2022. The nominal expiry date of the Agreement is 23 August 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, WADMIN Pty Ltd, sought approval of an enterprise agreement between the employer and the employees represented by the union, the Australian Services Union (ASU). The dispute was heard in the Fair Work Commission (FWC), an Australian tribunal with jurisdiction over employment and industrial relations matters. The union submitted that the agreement contained provisions that did not comply with the Fair Work Act 2009 (Cth) (FW Act) and requested the FWC to disallow the relevant provisions.

The legal issues before the FWC were whether the provisions in question complied with the FW Act and, if not, whether they could be disregarded under section 233 of the FW Act. The union argued that certain clauses were not in accordance with the Act because they did not provide the employees with the minimum entitlements prescribed by the FW Act. Specifically, the union claimed that the agreement allowed for a reduction in the notice period for termination of employment below the minimum standards set out in the Act. The union further submitted that the agreement should not be approved because it did not meet the requirements of the FW Act.

The FWC considered the arguments presented by both parties and examined the provisions in question. The FWC found that the agreement did not comply with the FW Act as it allowed for a reduction in the notice period for termination of employment. However, the FWC also noted that the union had not provided any evidence that the employees were unaware of the reduced notice period or that they had been coerced into accepting it. The FWC concluded that the non-compliant provisions could be disregarded under section 233 of the FW Act because the union had not demonstrated that the employees had been disadvantaged by the provisions. The FWC approved the enterprise agreement with the non-compliant provisions disregarded.

The FWC ordered that the WADMIN Pty Ltd Enterprise Agreement 2021-2023 be approved with the non-compliant provisions disregarded. The agreement was to be registered and published in accordance with the FW Act. The FWC also ordered that the union and the employer provide written confirmation of the agreement's approval to the FWC within 14 days of the decision. The union was granted leave to appeal the decision to the Federal Court of Australia.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established