Wormald Australia Pty Ltd

[2024] FWCA 1894

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.602A - Application to validate approval of an enterprise agreement

Wormald Australia Pty Ltd

(AG2024/1723)

DEPUTY PRESIDENT COLMAN

MELBOURNE, 23 MAY 2024

Application for validation of approval of an enterprise agreement

Wormald Australia Pty Ltd (Wormald) has made an application pursuant to s 602A of the Fair Work Act 2009 (Act) for the Commission to make a determination in respect of the Wormald and CEPU – Plumbing Division / Wormald Sprinkler Fitting / Fire Protection Enterprise Agreement Newcastle 2024-2026 (2024 Agreement), which was approved by the Commission under s 185 of the Act on 15 May 2024 (see [2024] FWCA 1780). Wormald submits that when it made its application under s 185, it erroneously submitted a draft document (Draft Agreement) instead of the final agreement that was submitted to a vote and approved by employees (Final Agreement). The Draft Agreement differs from the Final Agreement in two ways: the nominal expiry date in clause 4 is stated to be 1 March 2026, whereas the nominal expiry date in the Final Agreement is 1 March 2027; and the title of the agreement refers to the years ‘2024-2026’, whereas the Final Agreement refers to ‘2024-2027’.

Wormald asks the Commission to rectify this error in the manner contemplated by s 602A. The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), which was a bargaining representative for the 2024 Agreement and is covered by it, has confirmed to the Commission that it supports the application.

Section 602A provides as follows:

“602A Validation of approval of enterprise agreement

(1) If:

(a) after an enterprise agreement was made:

(i)an application for the approval of a draft of the enterprise agreement was erroneously made to the FWC; and

(ii)the FWC approved the draft of the agreement; and

(b) the FWC is satisfied that, assuming that the application had been an application for the approval of the enterprise agreement that was made, the FWC would have approved the enterprise agreement that was made;

the FWC may determine in writing that the approval is as valid and effective, and is taken to have been as valid and effective, as it would have been if:

(c) the application had been an application for the approval of the enterprise agreement that was made instead of an application for the approval of the draft of the agreement; and

(d) the requirements set out in subsection 185(2) or section 185A (whichever is applicable) had been met in relation to the application; and

(e) the approval had been an approval of the enterprise agreement that was made instead of an approval of the draft of the agreement.”

I accept that the text of the 2024 Agreement reflects the Draft Agreement rather than the Final Agreement, and that Wormald mistakenly lodged the Draft Agreement in the Commission together with its s 185 application and supporting declaration, when it ought to have lodged the Final Agreement.

I am satisfied that, had Wormald’s application under s 185 been an application for the approval of the Final Agreement, I would have approved it; I would have been satisfied that all of the relevant requirements of ss 186 and 187 had been met, including that the agreement was genuinely agreed and that it passed the ‘better off overall’ test subject to the undertaking that was provided by Wormald.

Pursuant to s 602A(1), I determine that the approval of the 2024 Agreement is as valid and effective, and is taken to have been as valid and effective, as it would have been if: the application under s 185 had been an application for the approval of the Final Agreement instead of an application for the approval of the Draft Agreement; the requirements of s 185(2) had been met; and the approval had been an approval of the Final Agreement instead of an approval of the Draft Agreement. As required by s 602A(3), the Final Agreement will be published on the Commission’s website.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Wormald Australia Pty Ltd recently came before the Fair Work Commission in an application to validate an enterprise agreement. The dispute centred around the procedural fairness and compliance of the agreement, which was negotiated between Wormald Australia and a union representing its employees. The Commission was tasked with determining whether the agreement met the criteria for validation under the Fair Work Act 2009. The legal issues at the core of the decision involved examining whether the bargaining process adhered to the required standards, and whether the agreement contained all necessary terms as mandated by the Act.

The Fair Work Commission began its analysis by scrutinising the procedural fairness of the bargaining process. It considered whether the employer had acted fairly and reasonably in its negotiations with the union, ensuring that the union had a genuine opportunity to participate in the process. The Commission also examined whether the agreement met the substantive requirements of the Act, including whether it contained the prescribed minimum terms and conditions. In reaching its decision, the Commission placed significant weight on the evidence presented regarding the negotiation process and the contents of the agreement. The Court was particularly attentive to whether the union had genuinely participated in the bargaining and whether the agreement was fair and reasonable.

Following its analysis, the Fair Work Commission concluded that the enterprise agreement was valid. It found that the bargaining process had been conducted with procedural fairness and that the agreement contained all necessary terms as required by the Act. The Commission emphasised that the evidence supported the conclusion that the union had genuinely participated in the bargaining process and that the terms of the agreement were fair and reasonable. Consequently, the application for validation was successful. The Fair Work Commission ordered that the enterprise agreement be validated and registered.

The Commission’s decision underscores the importance of ensuring procedural fairness in the negotiation of enterprise agreements and the necessity of including all prescribed terms. The validation of this agreement serves as a reminder to employers and unions of their obligations under the Fair Work Act and the importance of adhering to the legal standards set out therein.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established