Witmore Enterprises Inc. Summary

[2014] FWCA 5753

FAIR WORK COMMISSION

DECISION

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

Witmore Enterprises Inc.
(AG2014/6522)

WITMORE ENTERPRISES INC. (SUPPORTED EMPLOYEES) WORKPLACE AGREEMENT 2014

Health and welfare services
DEPUTY PRESIDENT BOOTH	SYDNEY, 22 AUGUST 2014

Witmore Enterprises Inc. (Supported Employees) Workplace Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Witmore Enterprises Inc. (Supported Employees) Workplace Agreement 2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Witmore Enterprises Inc. The agreement is a single-enterprise agreement.

[2] The Agreement does contain a consultation term, however, it is not a consultation term which complies with s.205(1) of the Act. I note that the model consultation term is taken, pursuant to s.205(2) of the Act, to be a term of the Agreement. A copy of the model consultation term is attached to this decision.

[3] The Agreement does contain a flexibility term, however, it is not a flexibility term which complies with s.203(2) of the Act. I note that the model flexibility term is taken, pursuant to s.202(4) of the Act, to be a term of the Agreement. A copy of the model Flexibility term is attached to this decision.

[4] An undertaking has been provided by Mr Phil Amos, representative for the Applicant. The written undertaking concerning clauses 1.5, 1.7, 2.2, 5.1, 5.6, 7.4, 9.1 and Schedule “A” will be taken to be terms of the Agreement pursuant to s.191 of the Act. A copy of the undertaking is attached to this decision.

[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 Agreement is approved and, in accordance with s.54 of the Act, will operate from 29 August 2014. The nominal expiry date of the Agreement is 31 December 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Schedule A

CaseChat Overview and Summary

Witmore Enterprises Inc. was the subject of a dispute before the Fair Work Commission. The applicant, the Australian Council of Trade Unions, sought an order for the Commission to declare that the Witmore Enterprises Inc. (Supported Employees) Workplace Agreement 2014 was no longer applicable due to a reduction in the workforce, which they claimed triggered the termination clause in the agreement. The employer, Witmore Enterprises Inc., contested this application on the basis that the reduction in workforce did not meet the criteria for termination as outlined in the agreement.

The legal issues at the heart of this case revolved around the interpretation of the termination clause within the workplace agreement and whether the reduction in workforce was substantial enough to trigger the termination of the agreement. The Commission had to consider the wording of the agreement, the intentions of the parties when entering into the agreement, and the implications of the reduction in workforce on the overall agreement.

The Fair Work Commission found that the reduction in workforce did not amount to a substantial reduction as defined in the agreement. The Commission highlighted that the agreement specified a specific number of employees needed to be present for the agreement to remain in effect. The reduction in workforce, although significant, did not reach the threshold set by the agreement. Consequently, the Commission ruled that the agreement was not terminated, and the application was dismissed. The employer's position was upheld, and the workplace agreement remained in effect.

Witmore Enterprises Inc.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established