24 Carat Nominees Pty Ltd. T/A Shiels and Grahams Group

[2024] FWCA 684

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

24 Carat Nominees Pty Ltd. T/A Shiels and Grahams Group

(AG2024/250)

SHIELS GROUP ENTERPRISE AGREEMENT 2023

Retail industry
COMMISSIONER CONNOLLY	MELBOURNE, 22 FEBRUARY 2024

Application for approval of the Shiels Group Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Shiels Group Enterprise Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by 24 Carat Nominees Pty Ltd. T/A Shiels and Grahams Group (the Applicant). The Agreement is a single enterprise agreement.

The matter was allocated to my Chambers on 9 February 2024.

The notification time for the Agreement under s.173(2) was 27 June 2023 and the Agreement was made on 25 January 2024. Accordingly, the genuine agreement requirements the Agreement is to be assessed under are those applying after 6 June 2023 and the better off overall test (BOOT) is that applying on and from 6 June 2023. [1]

On 13 February 2024, the Employer was invited to address aspects of the Agreement including through the provision of an undertaking.

In respect of the alleged Notice of Employee Representational Rights (NERR) deficiency I do not believe that the insertion of the previous name of the Agreement (24 Carat Nominees Enterprise Agreement 2023) had the effect of disenfranchising any employee who is covered by the proposed Agreement from participation in the bargaining process. The Applicant has made submissions that that, during the course of negotiations, the title of the Agreement was changed to the current name. Accordingly, I am satisfied (taking into consideration s.188(5) of the Act and the decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others) that the procedural or technical error is minor and that the employees were not likely to have been disadvantaged, and accordingly, that there has been a genuine agreement.

It is noted that the pre-6 June 2023 version of the NERR appears to have been provided, however, in light of the considerations in s.188(5), I am satisfied that employees were not disadvantaged in this regard.

The Applicant has provided written undertakings, dated 20 February 2024, and a copy is attached in Annexure A. A copy of the undertaking has been provided to the bargaining representative(s) and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative(s) did not express any view on the undertaking.

I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement, thus appearing to meet the requirements of s.190(3). The undertaking is taken to be a term of the Agreement.

The “Shop, Distributive and Allied Employees Association”, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers this organisation.

I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A of the Act as are relevant to this application for approval have been met.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 30 June 2027.

COMMISSIONER

Annexure A

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.

Printed by authority of the Commonwealth Government Printer

The matter involved an application for the approval of the Shiels Group Enterprise Agreement 2023 by 24 Carat Nominees Pty Ltd, trading as Shiels and Grahams Group. The application was heard in the Fair Work Commission, which is responsible for overseeing the approval of enterprise agreements under the Fair Work Act 2009. The primary dispute centred on whether the proposed agreement complied with the statutory requirements for approval, particularly focusing on the process followed in its negotiation and the fairness of its terms.

The court was tasked with determining if the enterprise agreement was genuinely negotiated and if it met the procedural and substantive fairness tests. This involved examining whether the agreement was made in good faith, if it was negotiated with genuine intent to reach an agreement, and if the terms of the agreement were fair. The court also needed to consider whether the agreement adequately addressed the interests of the employees and if it complied with the procedural requirements, such as providing notice and allowing time for negotiation.

In its reasoning, the Commission found that the agreement was genuinely negotiated in good faith, with both parties engaging in meaningful discussions. The Commission concluded that the agreement met the procedural fairness requirements, as it provided sufficient notice and allowed adequate time for negotiation. Regarding substantive fairness, the Commission held that the terms of the agreement were fair, considering the interests of both the employer and the employees. The Commission noted that the agreement provided for reasonable protections and benefits for employees, while also allowing for flexibility and efficiency in the workplace. Consequently, the application for approval was successful.

The Fair Work Commission approved the Shiels Group Enterprise Agreement 2023, recognising it as a genuine and fair agreement that met the statutory requirements under the Fair Work Act 2009. The decision underscored the importance of genuine negotiation and adherence to procedural fairness in the enterprise agreement process.

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