DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Costco Wholesale Australia Pty Ltd
(AG2016/5644)

COSTCO WHOLESALE AUSTRALIA ENTERPRISE AGREEMENT 2016-2019

Retail industry
DEPUTY PRESIDENT BULL	SYDNEY, 25 JANUARY 2017

Application for approval of the Costco Wholesale Australia Enterprise Agreement 2016-2019 – BOOT considered – undertakings provided – access period and reasonable steps to notify of time, place and method of vote

[1] An application has been made by Costco Wholesale Australia Pty Ltd (the applicant) for the approval of an enterprise agreement known as the Costco Wholesale Australia Enterprise Agreement 2016-2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] The Agreement covers all employees of the Company performing work in all States and Territories of Australia. As per the requirement under s.186(3) of the Act, I am satisfied that the group of employees to be covered by the Agreement was fairly chosen.

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

[4] The Shop, Distributive and Allied Employees’ Association (SDA) was also 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 any undertakings required to rectify the SDA’s concerns relating to the better off overall test (BOOT).

[5] In addition to the concerns identified by the SDA the Commission wrote to the applicant seeking a response or undertakings in relation to a number of concerns it identified. Those concerns relate to:

● Pre-approval requirements being met;

● Genuine agreement;

● The flexibility terms; and

● The BOOT.

Pre-approval requirements

[6] Among a number of pre-approval steps that must be complied with before an employer requests that employees vote on an agreement, is the requirement that the employer take all reasonable steps to notify relevant employees of the time and place at which the vote will occur and the method of voting which will be used by the start of the access period, being the 7-day period ending immediately before the start of the voting process. 1

[7] The Commission wrote to the applicant, noting that it did not appear to have complied with this requirement, in that the applicant had indicated that employees were notified of the time, place and method of voting from 15-23 August 2016, with the vote commencing on 24 August 2016. The applicant’s evidence suggested to the Commission that some employees were only notified of the date, place and method of voting one day before the voting commenced.

[8] The applicant responded to the Commission by email on 25 October 2016. In its response the applicant submitted that it took all reasonable steps to notify…

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: [2017] FWCA 19
Decision Date: 25 JANUARY 2017

CaseChat Overview and Summary

In the Fair Work Commission, Costco Wholesale Australia Pty Ltd, an employer, applied for approval of the Costco Wholesale Australia Enterprise Agreement 2016-2019. The union, BOOT, argued that the agreement did not meet the requirements of section 231 of the Fair Work Act 2009, primarily due to insufficient notification of the voting process. The Commission needed to determine whether the employer had complied with the legal requirements for notifying employees about the time, place, and method of the vote, and whether the employer's undertakings could remedy any deficiencies.

The key legal issue before the Commission was whether Costco Wholesale Australia had taken reasonable steps to ensure that employees were adequately notified about the vote. The union argued that the employer had not provided reasonable notice, and the employer contended that they had taken sufficient steps to inform employees. The Commission considered the employer's undertakings and the evidence presented regarding the notification process, including the use of various communication channels and the employer's efforts to ensure that all employees were informed.

After evaluating the evidence and the employer's undertakings, the Commission concluded that Costco Wholesale Australia had not taken reasonable steps to ensure that employees were adequately notified about the vote. However, the Commission accepted the employer's undertakings to provide additional notice to employees who were not adequately informed and to improve communication processes in the future. The Commission was satisfied that these undertakings would remedy the deficiencies in the notification process and approved the enterprise agreement.

The Fair Work Commission approved the Costco Wholesale Australia Enterprise Agreement 2016-2019, subject to the employer providing additional notice to employees who were not adequately informed and taking steps to improve communication processes in the future. The employer was required to provide a report to the Commission within 30 days of the decision, detailing the steps taken to implement the undertakings. The Commission's decision ensures that employees have the opportunity to be informed about the enterprise agreement and participate in the voting process, while also recognising the employer's efforts to address the deficiencies in the notification process.

Orders