Winc Australia Pty Limited T/A Winc
[2025] FWCA 451
•5 FEBRUARY 2025
| [2025] FWCA 451 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Winc Australia Pty Limited T/A Winc
(AG2024/4808)
WINC – ENTERPRISE AGREEMENT 2024
| Storage Services | |
| DEPUTY PRESIDENT ROBERTS | SYDNEY, 5 FEBRUARY 2025 |
Application for approval of the Winc - Enterprise Agreement 2024
An application has been made for approval of an enterprise agreement known as the Winc - Enterprise Agreement 2024 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Winc Australia Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.
The Applicant has provided written undertakings (Annexure A). In accordance with s.190(4) of the Act the views of the bargaining representatives for the agreement were sought in relation to the undertakings. 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.
Having regard to the supporting material and the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as is relevant to this application for approval has been met. The undertakings are taken to be a term of the Agreement.
I note that the preface to the Agreement, under the heading “Application of this Agreement” provides, amongst other things, that:
This Agreement shall apply to the exclusion of any industrial instrument and be read and interpreted in conjunction with the National Employment Standards (NES) provided that where there is any inconsistency between this Agreement and the NES, the more beneficial provision to an employee shall take precedence.
The United Workers Union (UWU) lodged a Form F18 statutory declaration giving notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note the Agreement covers the UWU.
The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 30 June 2027.
An application has also been made by the Applicant to vary the terms of the Agreement under s.218A of the Act to correct an obvious error, defect or irregularity in the Agreement. The application seeks to amend Clause 8 of the Agreement headed ‘Shift Breaks’.
Clause 8 as submitted for approval provides that:
During each shift, you will be entitled to the following work breaks, to be taken at the times advised by Winc, provided that no Employee will be required to work more than four (4) hours without taking a work break:
a) 1 x Tea Break: 20 minutes paid
b) 1 x Meal Break: 30 minutes paid
The Applicant seeks to amend Clause 8(b) so as to read:
b) 1 x Meal Break: 30 minutes unpaid
In support of the application, I received submissions from the Applicant going to the history of the provision and the circumstances of the error. The Applicant explained that, as a result of a transcription error the word ‘unpaid’ was converted incorrectly from the text of the currently operative Winc – Enterprise Agreement 2021[1].
The Applicant submitted that the error would have a substantial financial impact if left uncorrected. It was further submitted that the shift breaks had not at any stage been a subject of discussion during the negotiations for the new agreement nor had the change been reflected in the “Summary of Changes’ document circulated to employees and filed with the Commission.
The views of the bargaining representatives were sought in respect of the variation application and the Applicant’s submissions. Each of the bargaining representatives has consented to the amendment as sought. Having regard to these matters including the uncontested account of events by the Applicant, I am satisfied that the Agreement contains an obvious error within the meaning of s.218A and that I should exercise my discretion in favour of varying the Agreement to correct that error.
As a consequence, clause 8(b) of the Agreement shall provide as follows:
b) 1 x Meal Break: 30 minutes unpaid
I consider that the variation should operate from that the date of the operation of the Agreement. In accordance with s.218A(3) the variation will operate 7 days from today, that is, on and from 12 February 2025. An order giving effect to this decision will be published separately[2].
DEPUTY PRESIDENT
ANNEXURE A
[1] See: [2022] FWCA 1040
[2] PR784012
Printed by authority of the Commonwealth Government Printer
<AE527907 PR784010>
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