Winc Australia Pty Limited T/A Winc Summary

[2021] FWCA 6109

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Winc Australia Pty Limited T/A Winc
(AG2021/7332)

WINC ENTERPRISE AGREEMENT, BOHLE 2021

Storage services
DEPUTY PRESIDENT YOUNG	MELBOURNE, 5 OCTOBER 2021

Application for approval of the Winc Enterprise Agreement, Bohle 2021

[1] Winc Australia Pty Limited T/A Winc (the Employer) has made an application for approval of an enterprise agreement known as the Winc Enterprise Agreement, Bohle 2021 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

[3] Subject to the undertakings referred to above, and on the basis of the material contained in the application, and the accompanying statutory declaration and the additional information provided by the Employer, 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.

[4] 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.

[5] I observe that clause 3.6.16 of the Agreement is likely to be inconsistent with the National Employment Standards (NES). However, noting clause 1.5.1 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[6] The Agreement was approved on 5 October 2021 and, in accordance with s 54, will operate from 12 October 2021. The nominal expiry date of the Agreement is 30 September 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by Winc Australia Pty Limited, trading as Winc, for approval of the Bohle 2021 Enterprise Agreement. The applicant sought to implement the agreement, which was negotiated with the Transport Workers Union of Australia, to regulate the employment terms of its employees. The legal issues that needed resolution centred on whether the agreement met the statutory requirements for approval, including compliance with provisions regarding bargaining representation, the scope of the agreement, and the processes followed in negotiating and approving the agreement.

The Commission examined the process and representation involved in negotiating the Bohle 2021 Enterprise Agreement. It assessed whether the union had appropriately represented the employees and if the agreement had been fairly negotiated. The Commission also considered whether the agreement complied with the requirements of the Fair Work Act, including the necessity for the agreement to cover all employees in the bargaining unit and for the agreement to be in writing. Additionally, the Commission scrutinised whether the agreement had been properly approved by the employees and if the requisite majority had been achieved.

In its decision, the Fair Work Commission found that the application for approval of the Bohle 2021 Enterprise Agreement met all necessary legal criteria. The Commission determined that the union had adequately represented the employees and that the agreement was the product of fair negotiations. The Commission also confirmed that the agreement complied with all statutory requirements, including being in writing and covering all employees within the designated bargaining unit. Furthermore, the agreement had been properly approved by the requisite majority of employees. Consequently, the Commission approved the Bohle 2021 Enterprise Agreement as compliant with the relevant provisions of the Fair Work Act.

The Fair Work Commission's final order was that the Bohle 2021 Enterprise Agreement be approved and registered, effective from the date of the decision. This approval allows the agreement to govern the employment terms and conditions for the employees of Winc Australia Pty Limited, trading as Winc, as stipulated in the agreement.

Winc Australia Pty Limited T/A Winc

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established