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…

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

Case: [2019] FWCA 7923
Decision Date: 20 NOVEMBER 2019

CaseChat Overview and Summary

Costco Wholesale Australia Pty Ltd was involved in a dispute regarding the application for approval of the Costco Wholesale Australia Enterprise Agreement 2019-2023, a roll-over enterprise agreement. The matter was heard in the Fair Work Commission. The primary issue before the court was whether the proposed enterprise agreement met the 'better off overall test' as stipulated by the Fair Work Act 2009. This test requires that the financial and non-financial benefits of the proposed agreement must be better for the employees than the previous agreement or the applicable award, and that the agreement does not significantly disadvantage the employees.

The court considered the evidence presented by both parties, focusing on the financial and non-financial benefits of the proposed agreement. The employer argued that the new agreement provided for a reasonable balance of benefits and that it was in line with the business's needs. The employees' representatives contended that the proposed changes would disadvantage the employees, particularly in terms of pay rates and conditions. After careful consideration, the court found that the proposed enterprise agreement met the better off overall test. The agreement provided for a reasonable balance of benefits, and the financial and non-financial aspects of the agreement were deemed to be favourable to the employees.

Consequently, the court approved the Costco Wholesale Australia Enterprise Agreement 2019-2023. The decision was based on the comprehensive assessment of the evidence and the determination that the agreement was fair and reasonable. The final orders of the court mandated that the agreement be approved and implemented as per the terms outlined.

Orders