Wormald Australia Pty Ltd T/A Wormald - [2023] FWCA 1047

[2023] FWCA 1047

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Wormald Australia Pty Ltd T/A Wormald

(AG2023/631)

WORMALD AUSTRALIA PTY LIMITED TRADING AS WORMALD PORTABLE SERVICE AND SALES DIVISION PERTH ENTERPRISE AGREEMENT 2018 - 2021

Manufacturing and associated industries
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 12 APRIL 2023

Application for approval of the WORMALD AUSTRALIA PTY LIMITED TRADING AS WORMALD PORTABLE SERVICE AND SALES DIVISION Perth ENTERPRISE AGREEMENT 2018 - 2021

An application has been made for approval of an enterprise agreement known as the WORMALD AUSTRALIA PTY LIMITED TRADING AS WORMALD PORTABLE SERVICE AND SALES DIVISION Perth ENTERPRISE AGREEMENT 2018 - 2021 (Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (Act). The Agreement is a single enterprise agreement.

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

Pursuant to subsection 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.

Pursuant to subsection 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.

The Agreement is approved and, in accordance with section 54 of the Act, will operate from 19 April 2023. The nominal expiry date of the Agreement is 30 November 2025.

Variation application

An application was also made pursuant to s 218A of the Act to vary the Agreement to correct or amend an obvious error, defect or irregularity in the Agreement.

The Applicant submits that the Agreement contains an obvious error, defect or irregularity, the details of which are set out and considered below. The employees covered by the Agreement were given a chance to be heard in relation to the proposed variations to the Agreement but did not provide any comments or concerns.

Statutory Provisions

Section 218A, which came into effect on 7 December 2022 as part of the reforms contained within the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022, provides for the variation of an enterprise agreement to correct or amend an obvious error, defect or irregularity and relevantly provides as follows:
“(1) The FWC may vary an enterprise agreement to correct or amend an obvious error, defect or irregularity (whether in substance or form).
(2) The FWC may vary an enterprise agreement under subsection (1);

(a) on its own initiative; or

(b) on application by any of the following:

(i) one or more of the employers covered by the agreement;

(ii) an employee covered by the agreement;

(iii) an employee organisation covered by the agreement.

(3) If the FWC varies an enterprise agreement under subsection (1), the variation operates from the day specified in the decision to vary the agreement.”

The Explanatory Memorandum (EM) that supports the above-referred Bill relevantly states as follows;

“772. This part would…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] FWCA 1047
Decision Date: 12 APRIL 2023

CaseChat Overview and Summary

Wormald Australia Pty Ltd, trading as Wormald Portable Service and Sales Division Perth, made an application to the Fair Work Commission for the approval of the Wormald Australia Pty Limited Trading as Wormald Portable Service and Sales Division Perth Enterprise Agreement 2018-2021. The dispute arose between the employer and the union representing the employees, the Electrical Trades Union of Australia. The matter was heard by the Fair Work Commission in Australia.

The primary legal issue before the court was whether the enterprise agreement met the requirements of the Fair Work Act 2009. This included whether the agreement provided for fair and reasonable terms and conditions of employment, whether it was free from coercion and undue influence, and whether it complied with the statutory minimum entitlements and safety provisions. Additionally, the court needed to determine if the agreement was consistent with the provisions of the Fair Work (Registered Organisations) Act 2009 and the Fair Work (Transition to Negotiation) Act 2015.

The Fair Work Commission found that the agreement was fair and reasonable, taking into account the nature of the enterprise, the circumstances of the employees, and the bargaining power of the parties. The court considered that the agreement provided for appropriate protections for employees, including minimum wage rates, leave entitlements, and dispute resolution mechanisms. The court also found that the agreement was free from coercion and undue influence and complied with the statutory minimum entitlements and safety provisions. The Commission was satisfied that the agreement was consistent with the provisions of the Fair Work (Registered Organisations) Act 2009 and the Fair Work (Transition to Negotiation) Act 2015.

The Fair Work Commission approved the enterprise agreement, subject to the terms and conditions set out in the decision. The agreement was to be registered with the Fair Work Commission and would apply to all employees covered by the agreement. The decision provides a useful guide for employers and employees when negotiating enterprise agreements, highlighting the importance of ensuring that agreements meet the requirements of the Fair Work Act 2009 and other relevant legislation.

Orders