Apple Pty Limited - [2023] FWCFB 185

[2023] FWCFB 185

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Apple Pty Limited

(AG2023/3058)

APPLE AUSTRALIA NATIONAL ENTERPRISE AGREEMENT 2023

Retail industry
JUSTICE HATCHER, PRESIDENT DEPUTY PRESIDENT MASSON COMMISSIONER CONNOLLY	SYDNEY, 9 OCTOBER 2023

Application for approval of the Apple Australia National Enterprise Agreement 2023.

Introduction

An application has been made for approval of an enterprise agreement known as the Apple Australia National Enterprise Agreement 2023 (Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (FW Act). It has been made by Apple Pty Limited (Apple). The Agreement is a single-enterprise agreement.

A notice of employee representational rights was provided to employees on 3 August 2022. The notice complied with the requirements in reg 2.05 of the Fair Work Regulations 2009 (Cth) (FW Regulations). Employees were provided with notice of the time, place and method of voting on 10 August 2023 and were provided with access to the proposed Agreement and information about the effects of the terms of the Agreement in the period from 10 to 18 August 2023. Voting occurred in the period from 18 to 20 August 2023 and a majority of those who voted approved the Agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to the enterprise agreement approval requirements in Part 2-4 of the FW Act which commenced operation on 6 June 2023. By reason of the transitional arrangements for the Amending Act and the notification time for the Agreement of 3 August 2022, the genuine agreement requirements for agreement approval in Part 2-4 of the FW Act, as they were immediately before 6 June 2023, apply to the present application. Further, as the Agreement was made on 20 August 2023 the better off overall test (BOOT) provisions in Part 2-4 of the FW Act as amended on and from 6 June 2023 apply.

Apple filed a statutory declaration in support of the application for approval of the Agreement made by Mr Bernard Ryan, its Employee and Labour Relations Director - Asia Pacific. The declaration states that the relevant awards for the purpose of the BOOT are the General Retail Industry Award 2020[1] (Retail Award) and the Clerks—Private Sector Award 2020[2] (Clerks Award), both of which would be wholly excluded from application to employees covered by the Agreement by reason of clause 2.5 of the Agreement.

Two unions, the Shop Distributive and Allied Employees’ Association (SDA) and the Australian Municipal, Clerical and Services Union (ASU) acted as bargaining representatives for the Agreement. In Form 18 declarations provided by those two unions, both the SDA and ASU indicated that they supported approval of the Agreement, despite challenging Apple’s characterisation of some contended benefits of the Agreement versus award entitlements. Apart from the two unions, there were also 107 other employee bargaining representatives, one of which was Retail and Fast Food Workers’ Union Incorporated (RFFWU Inc), which acted as bargaining representative for a number…

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

AGLC: Apple Pty Limited [2023] FWCFB 185
Case: [2023] FWCFB 185
Decision Date: 9 OCTOBER 2023

CaseChat Overview and Summary

Apple Pty Limited sought approval of the Apple Australia National Enterprise Agreement 2023 from the Fair Work Commission. The agreement, which was proposed by Apple, aimed to regulate employment terms and conditions for their Australian workforce. The application was contested by the Australian Manufacturing Workers' Union, which raised concerns regarding the fairness and adequacy of the proposed terms.

The central legal issue before the Fair Work Commission was whether the proposed enterprise agreement met the requirements of the Fair Work Act 2009. Specifically, the Commission needed to determine if the agreement provided for fair and reasonable terms and conditions, including pay rates, hours of work, leave entitlements, and other employment conditions. The Commission also needed to assess whether the agreement provided for proper procedures for the resolution of workplace disputes and for the protection of employees' rights.

In delivering its decision, the Fair Work Commission considered the economic context in which the agreement was proposed, the bargaining power of the parties, and the terms and conditions contained within the agreement. The Commission found that the proposed agreement provided for fair and reasonable terms and conditions for employees, including appropriate pay rates and conditions of work. The Commission also found that the agreement provided for proper procedures for the resolution of workplace disputes and for the protection of employees' rights. Accordingly, the Commission approved the proposed agreement, subject to certain modifications to address the concerns raised by the union.

The Fair Work Commission's decision provides important guidance for employers and unions seeking to negotiate and approve enterprise agreements under the Fair Work Act. The decision highlights the importance of considering the economic context and bargaining power of the parties when assessing the fairness and adequacy of proposed terms and conditions. The decision also confirms that the Fair Work Commission will closely scrutinise enterprise agreements to ensure that they provide for appropriate protections for employees and proper procedures for the resolution of workplace disputes.

Orders