David Jones Pty Limited Summary

[2022] FWCA 1743

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

David Jones Pty Limited

(AG2022/1341)

David Jones Fulfilment Centre Enterprise Agreement 2022

Retail industry
COMMISSIONER MATHESON	SYDNEY, 27 MAY 2022

Application for approval of the David Jones Fulfilment Centre Enterprise Agreement 2022.

An application has been made for approval of an enterprise agreement known as the David Jones Fulfilment Centre Enterprise Agreement 2022 (Agreement). The application was made by David Jones Pty Limited (Applicant) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single enterprise agreement.

I observe that certain provisions of the Agreement may be inconsistent with the National Employment Standards (NES). However, noting clause 1.4.3 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A of this decision (Undertakings). The views of each person I know is a bargaining representative for the Agreement were sought in relation to the Undertakings and no objections were raised. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a)cause financial detriment to any employee covered by the Agreement; or

(b)result in substantial changes to the Agreement.

Pursuant to s.190(3) of the Act, I accept the Undertakings.

Subject to the Undertakings, and on the basis of the materials before the Commission, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to the application for approval of the Agreement have been met.

The Transport Workers’ Union of Australia and Shop, Distributive and Allied Employees Association, being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them.  In accordance with s.201(2) of the Act, I note that the Agreement covers the organisations.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 3 June 2022. The nominal expiry date of the Agreement is 3 April 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

David Jones Pty Limited applied to the Fair Work Commission for approval of the David Jones Fulfilment Centre Enterprise Agreement 2022. The dispute involved the potential inconsistency of the agreement with the National Employment Standards (NES). The Commission was tasked with deciding whether the agreement met the statutory requirements for approval and whether any inconsistencies with the NES would result in financial detriment to employees or substantial changes to the agreement. Commissioner Matheson examined the agreement and the written undertakings provided by the employer. The bargaining representatives for the agreement were also consulted, and no objections were raised to the employer's undertakings. The Commissioner was satisfied that the undertakings would not cause financial detriment to employees or result in substantial changes to the agreement. The Commissioner approved the agreement, subject to the undertakings, and it will operate from 3 June 2022 until 3 April 2026.

The Fair Work Commission was required to determine whether the David Jones Fulfilment Centre Enterprise Agreement 2022 met the statutory requirements for approval under the Fair Work Act 2009. The Commissioner considered whether any provisions of the agreement were inconsistent with the NES, and if so, whether the inconsistencies would result in financial detriment to employees or substantial changes to the agreement. The Commissioner also examined the written undertakings provided by the employer and the views of the bargaining representatives. The Commissioner was satisfied that the undertakings would not cause financial detriment to employees or result in substantial changes to the agreement.

The Commissioner determined that the agreement met the statutory requirements for approval and granted approval subject to the employer's undertakings. The Commissioner noted that certain provisions of the agreement may be inconsistent with the NES, but was satisfied that the more beneficial entitlements of the NES would prevail where there was an inconsistency. The Commissioner was also satisfied that the effect of accepting the employer's undertakings was not likely to cause financial detriment to employees or result in substantial changes to the agreement. The bargaining representatives for the agreement had also given notice that they wanted the agreement to cover them, and the Commissioner noted that the agreement covered the organisations.

The Fair Work Commission approved the David Jones Fulfilment Centre Enterprise Agreement 2022, subject to the employer's undertakings. The agreement will operate from 3 June 2022 until 3 April 2026. The Commissioner was satisfied that the agreement met the statutory requirements for approval and that the employer's undertakings would not cause financial detriment to employees or result in substantial changes to the agreement. The bargaining representatives for the agreement had also given notice that they wanted the agreement to cover them, and the Commissioner noted that the agreement covered the organisations. The Commissioner approved the agreement in accordance with section 201(2) of the Fair Work Act 2009.

David Jones Pty Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established