Amart Furniture Pty Ltd

[2020] FWCA 2617

[2020] FWCA 2617

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Amart Furniture Pty Ltd
(AG2020/1067)

AMART & UNITED WORKERS UNION MELBOURNE DC ENTERPRISE AGREEMENT 2020

Storage services
DEPUTY PRESIDENT CLANCY	MELBOURNE, 19 MAY 2020

Application for approval of the Amart & United Workers Union Melbourne DC Enterprise Agreement 2020.

[1] An application has been made for the approval of an enterprise agreement known as the Amart Furniture & United Workers Union Melbourne DC Enterprise Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Amart Furniture Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Agreement does not cover all of the employees of Amart Furniture Pty Ltd, however, taking into account the factors in s.186(3) and s.186(3A) I am satisfied that the group of employees was fairly chosen.

[3] I have noted a number of issues with the Notice of Employee Representational Rights (NERR):

a) Firstly, the name of the employer is listed as Super Amart Pty Ltd whereas the name of the employer listed in the Agreement and this application is Amart Furniture Pty Ltd. As to this, Amart Furniture Pty Ltd advises that Super Amart Pty Ltd is the former name of the entity that is now Amart Furniture Pty Ltd and as such, the two entities are the same business. The change in entity name occurred prior to the NERR being issued. Amart Furniture Pty Ltd submits this is an error which is capable of being cured in accordance s.188(2) of the Act.

b) Secondly, the name of the enterprise agreement it was said the Company was bargaining for was the Amart Melbourne DC Enterprise Agreement 2020 whereas the ultimate name of the Agreement is, as outlined above, the Amart Furniture & United Workers Union Melbourne DC Enterprise Agreement 2020. As to this, Amart Furniture Pty Ltd advises that it intended, at the time the NERR was issued, for the Agreement title to be the Amart Melbourne DC Enterprise Agreement 2020. It says that during the course of bargaining the United Workers’ Union, as bargaining representative, sought that the name be varied to the Amart Furniture & United Workers Union Melbourne DC Enterprise Agreement 2020. Further, it submits that the name change has no impact on the scope or other terms of the Agreement and on that basis, it is minor in nature and employees were not in any way disadvantaged by the change in name. While Amart Furniture Pty Ltd accepts there is a difference between the name on the NERR and the name of the Agreement lodged, it contends this does not invalidate the NERR and can be a common feature of bargaining. In the alternative, it submits that if this is deemed to be an error in the content of the NERR, the error is also capable of being cured in accordance with s.188(2).

c) Finally, the NERR describes the scope of the employees proposed to be covered by the Agreement as those “employed at the Company’s distribution centre in Melbourne and who perform storage service work , apart from employees classified as managers and those employees employed on an annualised salary” whereas the ultimate scope described in the Agreement is “Amart employees engaged by Amart in the classifications set out in the Agreement to perform work at our Distribution Centre at Truganina in Victoria after the commencement of the Agreement. For the sake of clarity the Agreement will not apply to any employees performing work at or in connection to our retail stores including retail offsites dispatching directly to customers or salaried employees.”

As to this, Amart Furniture Pty Ltd advised at a Mention on 5 May 2020 that the employees proposed to be covered by the Agreement currently work at its distribution centre in Somerton. It says that by the proposed commencement of the Agreement on 1 July 2020, it will have moved its distribution centre to Truganina and the employees proposed to be covered by the Agreement will have transferred to that distribution centre. Amart Furniture Pty Ltd also submitted that those employees who were intended to be covered by the Agreement were provided with the NERR and invited to participate in the bargaining process.

[4] As to whether the Agreement was genuinely agreed, Amart Furniture Pty Ltd submitted the terms of the Amart Melbourne DC Enterprise Agreement 2017 (the 2017 Agreement) are well known to the employees who will be covered by the Agreement and further, the terms of the Agreement, while in different form, are predominantly the same as the 2017 Agreement. Amart Furniture Pty Ltd advised that the substantive differences between the 2017 Agreement and the Agreement were set out in detail and further, that it explained why the Agreement was in a different form and the effect of the change in form. Amart Furniture Pty Ltd contends that the steps it took were reasonable, having regard to both the detail of the explanation and the circumstances of employees.

[5] I have had regard to these submissions and have also noted that when 20 out of 27 employees covered by the proposed agreement voted, they voted unanimously to approve the Agreement. As to the issues in relation to the NERR, I am satisfied having regard to circumstances before me that they can be regarded as minor technical errors 1 and further, that the employees were not likely to have been disadvantaged as a result of them. I am satisfied the Agreement has been genuinely agreed.

[6] Amart Furniture Pty Ltd has provided written undertakings. A copy of the undertakings, which are agreed by the United Workers Union (UWU), is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in a substantial change to the Agreement. The undertakings are taken to be a term of the Agreement.

[7] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, together with my conclusions at paragraph [5] above, I am satisfied that each of the requirements of ss 186, 187, 188 and 190 as are relevant to this application for approval have been met.

[8] The UWU, 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) and based on the statutory declaration provided by the UWU, I note that the Agreement covers the UWU.

[9] The Agreement is approved and, in accordance with s.54(1)(b), will operate from 1 July 2020. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

Annexure A

 1   Fair Work Act 2009, s.188(2).

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