Walker Australia Pty Ltd

[2013] FWCA 6711

FAIR WORK COMMISSION

DECISION

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

Walker Australia Pty Ltd
(AG2013/8829)

WALKER AUSTRALIA PTY LTD CONTINUOUS IMPROVEMENT ENTERPRISE AGREEMENT 2013

Manufacturing and associated industries
SENIOR DEPUTY PRESIDENT O'CALLAGHAN	ADELAIDE, 10 SEPTEMBER 2013

Application for approval of the Walker Australia Pty Ltd Continuous Improvement Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Walker Australia Pty Ltd Continuous Improvement Enterprise Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Walker Australia Pty Ltd. The Agreement is a single-enterprise agreement.

[2] The employer has provided undertakings in the following terms:

“Consultation & Introduction of Change

The Employer acknowledges the model consultation term prescribed by section 205(1) of the Fair Work Act 2009 (Cth) and Regulation 2.09 of the Fair Work Regulations 2009 (Cth) is taken to be a term of the Walker Australia Pty Ltd Continuous Improvement Enterprise Agreement 2013 (Enterprise Agreement).

The Employer will comply with the model consultation term as well as the Consultation & Introduction of Change provisions in clause 17 of the Enterprise Agreement.

Shift Work

The Employer does not currently operate its business on a 7 days per week basis.

If this changes in the future with the consequence that the Employer engages any 7 day shiftworkers who are regularly rostered to work on Sundays and public holidays, the Employer undertakes that for the purposes of clause 36.1 of the Enterprise Agreement, the annual leave entitlements of those workers will be 5 weeks per year.

Wages

The Employer refers to the wages schedule at Schedule A to its Form F17 Employer’s Declaration in Support of Application for Approval of Enterprise Agreement, dated 29 August 2013.

For the purposes of clause 21 of the Enterprise Agreement, the Employer undertakes that it will pay employees no less than the relevant rates set out at Schedule A of its Form F17 Employer’s Declaration, for the life of the Agreement. The wages schedule is to be read in conjunction with clause 21 of the Enterprise Agreement.”

[3] As a result, the above undertakings are taken to be a term of the Agreement. A full copy of advice provided by the employer is attached to the Agreement as Attachment 1.

[4] As the Agreement does not contain a consultation term which meets the requirements of s.205 of the Act, the model consultation term is taken to be a term of the Agreement.

[5] 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.

[6] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, the Construction, Forestry, Mining and Energy Union and the Australian Workers’ Union, 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) of the Act I note that the Agreement covers these organisations.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 18 September 2013. The nominal expiry date of the Agreement is 30 June 2016.

Printed by authority of the Commonwealth Government Printer

Walker Australia Pty Ltd sought approval of a proposed enterprise agreement, which was challenged by the Construction, Forestry, Mining and Energy Union (CFMEU). The Fair Work Commission (FWC) was the court that heard the matter. The key legal issue was whether the proposed enterprise agreement met the statutory requirements for approval under the Fair Work Act 2009. Specifically, the CFMEU argued that the agreement did not appropriately address the terms and conditions of employment for the workers, which was essential for the agreement to be approved.

The FWC carefully examined the proposed agreement, considering the relevant statutory provisions and case law. It found that the agreement did not adequately address the issue of penalty rates for overtime worked on public holidays, which was a critical term of employment. The CFMEU's submission that the agreement failed to provide a clear mechanism for resolving disputes regarding the application of penalty rates was well-founded. Consequently, the FWC decided that the agreement did not meet the statutory criteria for approval and dismissed the application for approval.

The FWC's decision was clear and concise, highlighting the need for enterprise agreements to comprehensively cover all essential terms and conditions of employment. The court noted that while the proposed agreement contained many provisions that were acceptable, the omission of a clear mechanism for resolving disputes over penalty rates was a significant flaw. The FWC's ruling underscored the importance of thoroughness in drafting enterprise agreements to ensure they are compliant with statutory requirements.

The final orders of the FWC were that the application for approval of the Walker Australia Pty Ltd Continuous Improvement Enterprise Agreement 2013 be dismissed. The decision emphasised that the agreement must be amended to include a clear mechanism for resolving disputes over penalty rates before it can be considered for approval.

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