Winc Australia Pty Limited
[2025] FWCA 625
•18 FEBRUARY 2025
| [2025] FWCA 625 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Winc Australia Pty Limited
(AG2024/5068)
WINC AUSTRALIA PTY LIMITED, VICTORIAN DISTRIBUTION CENTRE, ENTERPRISE AGREEMENT 2024
| Storage services | |
| DEPUTY PRESIDENT GRAYSON | SYDNEY, 18 FEBRUARY 2025 |
Application for approval of the Winc Australia Pty Limited, Victorian Distribution Centre, Enterprise Agreement 2024
Introduction
Winc Australia Pty Limited (the Employer) has made an application for approval of an enterprise agreement known as the Winc Australia Pty Limited, Victorian Distribution Centre, Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.
Transitional arrangements under the Secure Jobs, Better Pay amendment
The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 6 May 2024 and the Agreement was made on 5 December 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.
Amended Form F17B
On review of the application, the Form F17B filed by the Employer contained an irregularity in respect of the Agreement’s coverage when compared with the Notice of Employee Representational Rights (NERR) issued to employees and the clauses of the Agreement, including the coverage clause of the Agreement. Although the NERR and the Agreement indicated that the Agreement covered full-time, part-time and casual employees, the Form F17B initially indicated that the Agreement only covered full-time and part-time employees.
On 23 January 2025, the Employer filed a corrected Form F17B which reflected the intended coverage of the Agreement as reflected in the NERR and in the Agreement’s terms, accompanied by submissions confirming that the Agreement was intended to cover all employees performing work that falls within the classifications covered by the Agreement and who are based at the Employer’s distribution centre in Victoria.
I consider it appropriate in the circumstances to allow an amendment of a document relating to a matter before the FWC and do so pursuant to s.586(a) of the Act.
Commencement of access period and notification of time, place and method of vote
Section 188(1) of the Act provides that the Commission must take into account the Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023 (Statement of Principles) made under s.188B in determining whether it is satisfied that an enterprise agreement has been genuinely agreed to by the employees covered by it
On review of the application, it was identified that:
(a)A full copy of the Agreement was provided to employees and made available at the Employer’s site on 28 November 2024;
(b)The notification of time, place and method of vote occurred on 28 November 2024; and,
(c)Voting for the Agreement commenced on 5 December 2024.
Accordingly, both the full copy of the Agreement and the notification of the time, place and method of the vote were provided less than 7 clear days prior to the commencement of the vote, as provided by [4] to [5] and [15] to [16] of the Statement of Principles respectively.
On 7 February 2025, the Employer provided submissions addressing these matters, which identified (among other things) that the United Workers’ Union (UWU) had been involved in the vote process and that the dates above at [4](a) to [4](c) had been agreed with the UWU. The UWU did not object to the Employer’s submissions.
Having regard to the submissions of the Employer, the participation of the employees in the voting process, and the involvement of the UWU in the voting process, I am satisfied that the Agreement has been genuinely agreed to by the employees.
Model Flexibility Term
The Agreement does not contain a flexibility term that meets the requirements of s.203 of the Act. Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 (the Regulations) is taken to be a term of the Agreement.
Model Consultation Terms
The Agreement does not contain all of the requisite consultation terms, as required by s.205(1) of the Act. Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Regulations is taken to be a term of the Agreement.
National Employment Standards (NES) Precedence Term
Clause 30 of the Agreement provides for annual leave but it does not provide for an additional week of leave per year for shiftworkers for the purposes of the NES. As shiftwork is provided for under the Agreement, this is inconsistent with s.81(1)(b) of the Act.
Clause 18.3.5 of the Agreement provides that the Employer may summarily terminate an employee for ‘malingering, inefficiency, neglect of duty or misconduct’. This appears more restrictive than provided for at reg.1.07 of the Regulations and is accordingly inconsistent with the Act at Division 11 concerning notice of termination.
I note that in accordance with the NES precedence term in Clause 6 of the Agreement, these clauses will be read and interpreted in conjunction with the NES.
Clauses 17.7.1 and 17.7.2 of the Agreement provide as follows and refer to redundancy:
Subject to further order of the FWC, where an employee who is terminated receives a benefit from a superannuation scheme, he/she shall only receive under 17.4 the difference between the severance pay specified in that clause and the amount of the superannuation benefit he/she receives which is attributable to employer contributions only.
If this superannuation benefit is greater than the amount due under 17.4 then he/she shall receive no payment under that clause.
These clauses may be discriminatory and accordingly inconsistent with s.195 of the Act. To the extent that these clauses may be discriminatory, I note that they are unenforceable. Further, these clauses may be inconsistent with s.120 of the Act as the receiving of superannuation benefits is not a reason by which the Commission will vary a redundancy payment, and accordingly inconsistent with the NES. I note that in accordance with the NES precedence term in Clause 6 of the Agreement, these clauses will also be read and interpreted in conjunction with the NES.
Section 190 Undertakings
The employer 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. The undertakings are taken to be a term of the Agreement.
Section 186, 187, 188 and 190
Subject to the undertakings referred to above, and having had regard to the Statement of Principles, 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.
Section 183 Bargaining Representatives
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), I note that the Agreement covers the UWU.
Approval
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 25 February 2025. The nominal expiry date of the Agreement is 30 June 2027.
Variation
Section 218A of the Act allows the Commission to correct or amend obvious errors, defects or irregularities (whether in substance or form). Its evident purpose is to remove complexity associated with varying enterprise agreements in certain limited circumstances.
It is significant in understanding the context of s.218A that the Commission can vary an agreement on its own initiative (s.218A(2)(a)). The power to vary an agreement under s.218A is not unlike the slip rule provisions in s.602. An agreement can be varied under s.218A to the extent necessary to remove the error, defect or irregularity –and no further.
Relevantly, it was identified that clause 13 of the Agreement provided that the Employer was entitled to ‘deduct’ payment for time lost during which an employee could not be usefully employed by reason of strike, breakdown of machinery, or other cause for which the Employer could not be held responsible. This is not consistent with s.524 of the Act which does not use the word ‘deduct’ but rather relieves the Employer of the obligation to make payments to an employee for the relevant period they are not able to be usefully employed in these circumstances.
It was also identified that the wording of the NES precedence clause, as indicated by the underlined text extracted below, was insufficiently clear and created a risk of ambiguity:
This Agreement shall be read and interpreted in conjunction with the National Employment Standards (NES) provided that where there is any detriment to an employee under the terms of this Agreement, the NES will apply.
Further, it was identified that:
(a)There were numerous clause referencing errors in the Agreement affecting clauses 25 to 34; and,
(b)Clauses 15.3.7, 20.4.1 and 20.8 referred to ‘this Award’ when appearing to intend to reference ‘this Agreement’.
On 23 January 2025, the Employer agreed to the Commission’s proposal to vary the Agreement pursuant to s.218A of the Act to correct the errors.
I am satisfied that the errors listed in [25] to [27] above are errors, defects or irregularities within the meaning of s.218A(1) of the Act. I am content to vary the Agreement on my own initiative to rectify this error ([PR784466]). The variation will operate from the date the Agreement commences.
The Agreement attached to this Decision is the Agreement as varied and will operate from 25 February 2025.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<AE528075 PR784462>
ANNEXURE A
0
0
0