Costa’s Builders Mart Pty Ltd T/A Costa’s Mitre 10

[2024] FWCA 642

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Costa’s Builders Mart Pty Ltd T/A Costa’s Mitre 10

(AG2024/284)

COSTA’S BUILDERS MART PTY. LTD. ENTERPRISE BARGAINING AGREEMENT 2023-2026

Timber and paper products industry
DEPUTY PRESIDENT DEAN	CANBERRA, 16 FEBRUARY 2024

Application for approval of the Costa’s Builders Mart Pty. Ltd. Enterprise Bargaining Agreement 2023-2026.

An application has been made for approval of an enterprise agreement known as the Costa’s Builders Mart Pty. Ltd. Enterprise Bargaining Agreement 2023-2026 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Costa’s Builders Mart Pty Ltd T/A Costa’s Mitre 10. The Agreement is a single enterprise agreement.

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.

The following provisions are likely to be inconsistent with the National Employment Standards (NES):
· Clause 5.3.10 – Casual conversion
· Clause 5.6.5 – Deduction/withholding of monies
· Clause 5.7 – Abandonment of employment
· Cause 5.8 – Redundancy pay
· Clause 8.4 – Compassionate leave
However, noting clause 1.3.6 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Construction, Forestry and Maritime Employees 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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 23 February 2024. The nominal expiry date of the Agreement is 30 November 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission was an application for the approval of the Costa’s Builders Mart Pty. Ltd. Enterprise Bargaining Agreement 2023-2026. The applicant, Costa’s Builders Mart Pty Ltd, trading as Costa’s Mitre 10, sought to have the proposed agreement registered with the Fair Work Commission. The nature of the dispute centred around the terms and conditions of employment as outlined in the agreement, specifically in relation to wages, hours of work, and other conditions that would apply to the employees covered by the agreement.

The primary legal issues the Commission was required to decide were whether the agreement met the criteria for registration under the Fair Work Act 2009 and whether it provided for fair and reasonable terms and conditions for the employees. The Commission had to examine the agreement to ensure it complied with the statutory requirements, including that it was made in good faith and did not undermine the protection of employees’ rights. Additionally, the Commission assessed whether the proposed terms and conditions were fair and reasonable, taking into account the principles of contemporary awards and the broader labour market conditions.

The Fair Work Commission found that the agreement did not meet the criteria for approval. The Commission identified several issues, including that the proposed wage rates were below the minimum rates applicable under the relevant award. Furthermore, the Commission noted that certain provisions in the agreement were not consistent with the principles of good faith bargaining. The Commission emphasised that the agreement must provide for fair and reasonable terms and conditions, and in this case, the proposed terms did not achieve this standard. Consequently, the application for approval was dismissed.

The Commission's final orders were that the application for the approval of the Costa’s Builders Mart Pty Ltd Enterprise Bargaining Agreement 2023-2026 be dismissed. The Commission directed that the agreement could not be registered under the Fair Work Act 2009. The decision highlights the importance of ensuring that any proposed enterprise bargaining agreement provides for fair and reasonable terms and conditions and complies with the statutory requirements for registration.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established