Workplace Alliance Pty Ltd T/A Workplace Alliance Pty Ltd

[2022] FWCA 1824

[2022] FWCA 1824

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Workplace Alliance Pty Ltd T/A Workplace Alliance Pty Ltd

(AG2022/1743)

Yiota-test

Manufacturing and associated industries
COMMISSIONER BISSETT	MELBOURNE, 7 JUNE 2022

Application for approval of the WPA Group Pty Ltd Enterprise Agreement 2022

“186      When the FWC must approve an enterprise agreement—general requirements

Basic rule

(1)       If an application for the approval of an enterprise agreement is made under section 185, the FWC must approve the agreement under this section if the requirements set out in this section and section 187 are met.
Note:   The FWC may approve an enterprise agreement under this section with undertakings (see section 190).

Requirements relating to the safety net etc.

(2)       The FWC must be satisfied that:

(a)       if the agreement is not a greenfields agreement—the agreement has been genuinely agreed to by the employees covered by the agreement; and

(b)       if the agreement is a multi enterprise agreement:

(i)           the agreement has been genuinely agreed to by each employer covered by the agreement; and

(ii)          no person coerced, or threatened to coerce, any of the employers to make the agreement; and

(c)       the terms of the agreement do not contravene section 55 (which deals with the interaction between the National Employment Standards and enterprise agreements etc.); and

(d)       the agreement passes the better off overall test.

Note 1: For when an enterprise agreement has been genuinely agreed to by employees, see section 188.

Note 2: The FWC may approve an enterprise agreement that does not pass the better off overall test if approval would not be contrary to the public interest (see section 189).

Note 3: The terms of an enterprise agreement may supplement the National Employment Standards (see paragraph 55(4)(b)).
Requirement that the group of employees covered by the agreement is fairly chosen

(3)       The FWC must be satisfied that the group of employees covered by the agreement was fairly chosen.

(3A)     If the agreement does not cover all of the employees of the employer or employers covered by the agreement, the FWC must, in deciding whether the group of employees covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.

Requirement that there be no unlawful terms

(4)       The FWC must be satisfied that the agreement does not include any unlawful terms (see Subdivision D of this Division).
Requirement that there be no designated outworker terms

(4A)     The FWC must be satisfied that the agreement does not include any designated outworker terms.

Requirement for a nominal expiry date etc.

(5)       The FWC must be satisfied that:

(a)       the agreement specifies a date as its nominal expiry date; and

(b)       the date will not be more than 4 years after the day on which the FWC approves the agreement.

Requirement for a term about settling disputes

(6)       The FWC must be satisfied that the agreement includes a term:

(a)       that provides a procedure that requires or allows the FWC, or another person who is independent of the employers, employees or employee organisations covered by the agreement, to settle disputes:

(i)           about any matters arising under the agreement; and

(ii)          in relation to the National Employment Standards; and

(b)       that allows for the representation of employees covered by the agreement for the purposes of that procedure.

Note 1: The FWC or a person must not settle a dispute about whether an employer had reasonable business grounds under subsection 65(5) or 76(4) (see subsections 739(2) and 740(2)).

Note 2: However, this does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4).”

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