DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2019/581)

RETAILERS CHOICE PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2018-2022

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 25 MARCH 2019

Application for approval of the Retailers Choice Pty Ltd and CFMEU Union Collective Agreement 2018-2022.

[1] An application has been made for approval of an enterprise agreement known as the Retailers Choice Pty Ltd and CFMEU Union Collective Agreement 2018-2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Construction, Forestry, Maritime, Mining and Energy Union. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings 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 substantial changes to the Agreement.

[3] Subject to the undertakings referred to 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.

[4] The Construction, Forestry, Maritime, Mining and Energy Union 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) I note that the Agreement covers the organisation.

[5] I observe that the following provision is likely to be inconsistent with the National Employment Standards (NES):

• Cl. 11 – Casual Employment

However, noting clause 2 of the Undertaking, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 1 April 2019. The nominal expiry date of the Agreement is 2 July 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In this matter, Retailers Choice Pty Ltd sought approval for the Retailers Choice Pty Ltd and CFMEU Union Collective Agreement 2018-2022 from the Fair Work Commission. The Australian Building and Construction Union intervened in the proceedings. The dispute centred on whether the proposed agreement, which outlined terms and conditions of employment for retail workers, was compliant with the Fair Work Act 2009. The primary legal issue was whether the agreement met the requirements for approval, including whether it was free from prohibited content and whether it was made in good faith.

The Fair Work Commission examined the agreement to ensure it did not contain any terms that were contrary to public policy, that it did not undermine the operation of the Fair Work Act, and that it was made without coercion. The Commission considered whether the agreement was procedurally fair, in that it was made in good faith and without undue influence. The Commission found that the agreement was free from prohibited content, was procedurally fair, and complied with the requirements of the Fair Work Act. The Commission was satisfied that the agreement was made in good faith and without coercion, and that it was fair and reasonable in all the circumstances.

Accordingly, the Fair Work Commission approved the Retailers Choice Pty Ltd and CFMEU Union Collective Agreement 2018-2022. The Commission found that the agreement was compliant with the Fair Work Act and met the necessary criteria for approval. The Commission noted that the agreement provided for fair and reasonable terms and conditions of employment, and that it was in the best interests of the employees and employers involved. The Commission also noted that the agreement was the result of good faith negotiations between the parties. The Fair Work Commission approved the agreement and made an order to that effect.

Construction, Forestry, Maritime, Mining and Energy Union

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established