Model Clause Overrides Union Friendly EA

Gladstone Ports Corporation Limited re Gladstone Ports Corporation Enterprise Agreement 2012 – [2013] FWC 305 – 14 January 2013

In this case the employer and the unions included in the EA a clause which appeared to meet the mandatory requirements for a Consultation clause. The trouble was, the clause said the employer had to consult with “the employees affected and their relevant Union”.

This contravened the Fair Work Act, which requires the consultation to be between the employer and the employees affected, while allowing for the representation of those employees. It might seem like a fine distinction but it is far from so. The EA effectively meant the only representatives the employees could have was a union and that contravened the Act.

The FWC approved the EA by requiring the model consultation clause to be incorporated into the EA instead of the one the employer and the unions had agreed upon.

This decision reminds employers that in those areas of an EA where a mandatory requirement exists, great care should be taken to avoid either a rejection of an EA approval or the embarrassment of having FWC require the adoption of another provision to comply with the law.