Costco Wholesale Australia Pty Ltd

[2019] FWCA 7923

[2019] FWCA 7923

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Costco Wholesale Australia Pty Ltd
(AG2019/2614)

COSTCO WHOLESALE AUSTRALIA ENTERPRISE AGREEMENT 2019 - 2023

Retail industry
DEPUTY PRESIDENT BOYCE	SYDNEY, 20 NOVEMBER 2019

Application for approval of the Costco Wholesale Australia Enterprise Agreement 2019 – 2023 — roll-over enterprise agreement — whether proposed enterprise agreement passes the better off overall test — proposed enterprise agreement approved.

[1] An application has been made for approval of an enterprise agreement to be known as the Costco Wholesale Australia Enterprise Agreement 2019-2023 (Agreement). The application is made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by the employer, Costco Wholesale Australia Pty Ltd (Applicant). The Agreement is a single enterprise agreement.

[2] The Agreement replaces and effectively rolls over the Costco Wholesale Australia Enterprise Agreement 2016-2019 (2016 Agreement), which was approved by Deputy President Bull in [2017] FWCA 19 (2017 Decision).

[3] The Applicant has provided written undertakings dated 17 October 2019. Those undertakings are attached at Annexure A to this decision. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement (as compared to the relevant modern award) and that the undertakings will not result in substantial changes to the Agreement. I note that those undertakings become terms of the Agreement.

[4] I note that the Commission sought the views of relevant bargaining representatives on the Applicant’s proposed undertakings, who made no objection to same.

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

[6] I am also satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

Union support for approval, and union coverage

[7] The United Workers Union (UWU) was an employee organisation involved in the agreement making process as a bargaining representative. The UWU has filed a statutory declaration (F18) stating that it supports the approval of the Agreement.

[8] The UWU 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 the organisation.

[9] The Australasian Meat Industry Employees’ Union (AMIEU) was an employee organisation involved in the agreement making process as a bargaining representative. The AMIEU has filed a statutory declaration (F18) stating that it supports the approval of the Agreement.

[10] The AMIEU 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 the organisation.

[11] The Shop, Distributive and Allied Employees’ Association (SDA) was an employee organisation involved in the agreement making process as a bargaining representative. The SDA has filed a statutory declaration (F18) stating that it supports the approval of the Agreement subject to the Commissions consideration and/or resolution of its issues of concern (including by reference to undertakings that the SDA submits rectify its concerns).

[12] The SDA 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 the organisation.

SDA concerns resolved

[13] In its statutory declaration (F18) dated 26 July 2019, the SDA raised various concerns in relation to the absence of RDOs for full time employees, the non-provision of compulsory consecutive days off for part-time employees, the absence of a guaranteed Sunday off when working regular Sundays (1 off in 4), and the application of roster patterns for part-time and permanent employees. The SDA submitted that whilst it considers the Agreement to meet the better off overall test (BOOT) despite the concerns it raises, these matters ought still be addressed by the Applicant by way of further undertakings.

[14] The SDA elaborated further upon its request for additional undertakings by way of written submissions dated 24 October 2019.

[15] In rejecting that there is any requirement upon the Applicant to provide the additional undertakings sought by the SDA, and in reaching my conclusion that the Agreement passes the BOOT (under s.193 of the Act), I rely upon the clarification of relevant terms and conditions in the Agreement as set out in the Applicant’s written submissions dated 17 October 2019.

[16] I further rely upon the fact that the Agreement now contains the undertaking provided with the 2016 Agreement (at clause 6.2.4), which was accepted by Deputy President Bull as satisfying the BOOT in the 2017 Decision (at [33]-[34]). In this regard, I also rely upon the conclusions made by Deputy President Bull in the 2017 Decision in making my determination in this matter as to the BOOT.

Agreement is approved

[17] The Agreement is hereby approved and, in accordance with s.54 of the Act, will operate from 27 November 2019. The nominal term of the Agreement will expire on 8 September 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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Annexure A