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[12]
austlii:cth/FWCA/2025/2196
General information, not legal advice.
FWCA
2025-07-03
Original judgment source is linked above.
The attached document replaces the document previously issued with the above code on 3 July 2025.
s.185 - Enterprise agreement
Allan Engineering Pty Ltd Atf The Allan Engineering Unit Trust
ALLAN ENGINEERING PTY LTD - WOOLWORTHS MELBOURNE NORTH DISTRIBUTION CENTRE - ENTERPRISE AGREEMENT 2025
Application for approval of the Allan Engineering Pty Ltd - Woolworths Melbourne North Distribution Centre - Enterprise Agreement 2025.
[1] An application has been made for approval of a single enterprise agreement known as the Allan Engineering Pty Ltd - Woolworths Melbourne North Distribution Centre - Enterprise Agreement 2025 (the Agreement). The application was made pursuant s. 185 of the Fair Work Act 2009 (the Act). The application has been made by Allan Engineering Pty Ltd as trustee for the Allan Engineering Unit Trust (employer). There were no employee bargaining representatives involved in bargaining for the agreement.
[2] Prior to approving the agreement, it was necessary to make some further enquiries of the employer relating to the interplay between clause 3 and clause 20 of the agreement. Those clauses are extracted below.
[3] The concern was that clause 20.2 might be an unlawful term insofar as it purported to prohibit the employees from organising or engaging in protected industrial action, where otherwise authorised pursuant to Part 3-3 of the Act, beyond the nominal expiry date of the agreement. The employer was invited to provide an undertaking to address the concern identified.
[4] The employer has offered an undertaking which is in different terms to that which I invited the employer to consider giving. The undertaking offered has the effect of substituting the word "duration" in clause 20.2 with the word "term". The undertaking proposed is plainly not likely to cause financial detriment to any employee covered by the Agreement or result in substantial changes to it.
[5] The word "term" in my view more aptly confines the period of the prohibition in clause 20.2 within the fixed period between the date the agreement commences operation and the nominal expiry date, in contrast to the word "duration" which implies that the prohibition remains in place for the entire period the Agreement remains operative after it commences. The Macquarie dictionary illustrates the difference in meaning insofar as it defines duration by reference to "the length of time anything continues" and term by reference to "a period time to which limits have been set". After some consideration I have persuaded myself that the undertaking addresses the concern raised, such that I can be satisfied that the Agreement does not contain any unlawful terms. I have drawn upon section 577(1) of the Act in forming the requisite state of satisfaction and the fact that another agreement for the same employer was approved a matter of weeks ago containing a clause in the same terms as clause 20 of the Agreement.[1]
[6] Subject to the undertaking referred to above and having taken into account the materials provided with the application for approval and since, I am satisfied that each of the requirements of ss. 186, 187, 188 and 190 as relevant to this application for approval have been met. The undertaking is taken to be at term of the Agreement.
[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 10 July 2025. The nominal expiry date of the Agreement is 4 July 2029.
[1] See [2025] FWCA 1481
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