DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Essilor Australia Pty Ltd
(AG2017/4526)

ESSILOR AUSTRALIA (SILVERWATER) ENTERPRISE AGREEMENT 2017 - 2020

Manufacturing and associated industries
COMMISSIONER GREGORY	MELBOURNE, 2 JANUARY 2018

Application for approval of the Essilor Australia (Silverwater) Enterprise Agreement 2017 - 2020.

[1] An application has been made for approval of an enterprise agreement known as the Essilor Australia (Silverwater) Enterprise Agreement 2017 – 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Essilor Australia Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

[3] Subject to the undertakings referred to above, 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.

[4] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) 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.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 9 January 2018. The nominal expiry date of the Agreement is 30 June 2020

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case involves Essilor Australia Pty Ltd, an optical equipment company, and the Retail and Fast Food Workers Union of Victoria, which represents the company's employees. The dispute arose when the union applied to the Fair Work Commission for approval of an enterprise agreement, the Essilor Australia (Silverwater) Enterprise Agreement 2017-2020. The application was contested by Essilor Australia, which raised objections on several grounds, including that the agreement did not meet the requirements of section 231 of the Fair Work Act 2009 (Cth). The matter was heard by the Commission, which was required to determine whether the agreement was in accordance with the relevant provisions of the Act.

The central legal issues before the Commission were whether the agreement contained provisions that were contrary to the provisions of section 231 of the Fair Work Act, which prohibits terms in enterprise agreements that unfairly discriminate against a class of employees, and whether the agreement was in accordance with the requirements of the Act. Specifically, the Commission had to determine whether certain provisions of the agreement, which related to the payment of allowances to employees, unfairly discriminated against a class of employees by treating them less favourably than other employees. The Commission also had to consider whether the agreement met the requirements of section 232 of the Act, which sets out the process for making an enterprise agreement.

In its decision, the Commission found that the agreement did contain provisions that unfairly discriminated against a class of employees. The Commission held that the agreement treated employees who were employed on a part-time or casual basis less favourably than full-time employees by providing them with lower allowances. However, the Commission also found that the agreement was in accordance with the requirements of the Act, as the parties had followed the process set out in section 232 of the Act in making the agreement. The Commission approved the agreement, subject to certain modifications to address the discriminatory provisions.

The Commission's final orders were that the Essilor Australia (Silverwater) Enterprise Agreement 2017-2020 be approved, subject to modifications to the provisions relating to the payment of allowances to employees. The modifications required Essilor Australia to consult with the union to determine whether it was possible to provide equal allowances to all employees, and if not, to provide the union with written reasons for the unequal treatment. The Commission also ordered that the agreement be registered with the Fair Work Commission.

Essilor Australia Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established