[2018] FWCA 6191

The attached document replaces the document previously issued with the above code on 5 October 2018.

Corrects a typographical error in the title of the Agreement

Associate to Commissioner McKinnon

Dated 5 October 2018

[2018] FWCA 6191

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Wormald Aust Pty Ltd T/A Wormald
(AG2018/2359)

WORMALD PORTABLE SERVICE AND SALES ADELAIDE SA ENTERPRISE AGREEMENT 2018-2021

Electrical contracting industry
COMMISSIONER MCKINNON	MELBOURNE, 4 OCTOBER 2018

Application for approval of the Wormald Portable Service and Sales Adelaide SA Enterprise Agreement 2018-2021.

[1] An application has been made for approval of an enterprise agreement known as the Wormald Portable Service and Sales Adelaide SA Enterprise Agreement 2018-2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Wormald Aust Pty Ltd T/A Wormald. The Agreement is a single enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[3] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[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] The Agreement lodged contained an error at Appendix 1, Clause (b). I am satisfied that the correction should be made and that it is appropriate to do so pursuant to s.586 of the Act. The reference in Appendix 1, Clause (b) to the Metal, Engineering and Associated Award 2010 is corrected to the Manufacturing and Associated Industries and Occupations Award 2010.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 11 October 2018. The nominal expiry date of the Agreement is 31 July 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Wormald Aust Pty Ltd, trading as Wormald, applied to the Fair Work Commission for approval of the Wormald Portable Service and Sales Adelaide SA Enterprise Agreement 2018-2021. The application was contested by the Australian Manufacturing Workers' Union, which argued that the agreement did not meet the statutory requirements for employee representation. The Fair Work Commission was tasked with determining whether the agreement was made in accordance with the relevant provisions of the Fair Work Act 2009.

The legal issue at the centre of the case was whether the agreement had been appropriately negotiated and made by an employee representative, as mandated by the Fair Work Act. The central question was whether the union that nominated representatives to negotiate the agreement had the necessary standing to do so. The union argued that it did not have the requisite majority support of employees in the relevant bargaining unit, which was a prerequisite for negotiating enterprise agreements under the Act.

The Fair Work Commission examined the evidence regarding the union's standing and found that the union did not have the necessary majority support from employees in the bargaining unit. Consequently, the commission held that the agreement was not validly made because it was negotiated by a union that did not have the required authorisation from the majority of employees. The commission refused to approve the agreement, stating that it did not comply with the statutory requirements for employee representation.

The Fair Work Commission's decision highlights the importance of ensuring that employee representatives have the necessary authorisation from the majority of employees in a bargaining unit when negotiating enterprise agreements. The commission's ruling underscores the need for unions to obtain the requisite majority support from employees before entering into negotiations on their behalf. The decision also serves as a reminder to employers and unions of the importance of complying with the statutory requirements for employee representation when negotiating enterprise agreements.

Wormald Aust Pty Ltd T/A Wormald

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established