Gasp Jeans Australia Pty Ltd - [2011] FWA 1091

[2011] FWA 1091

FAIR WORK AUSTRALIA

DECISION

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

Gasp Jeans Australia Pty Ltd
(AG2011/5098)

COMMISSIONER GOOLEY

MELBOURNE, 22 FEBRUARY 2011

Gasp Jeans Australia Pty Ltd Employee Enterprise Agreement 2010.

[1] Gasp Jeans Australia Pty Ltd (Gasp Jeans) applied on 10 January 2011 pursuant to section 185 of the Fair Work Act 2009 (FW Act) for approval of a single enterprise agreement (the Agreement).

[2] On 8 February 2011 I wrote to Mr Eddie Yilmaz, the General Manager of Gasp Jeans, outlining a number of concerns about the Agreement and advising that I would list the matter for hearing to enable him to make submissions as to why the Agreement should be approved.

[3] As the Agreement provided for “preferred hours” I drew his attention to the decision of the Full Bench in Bupa Care Services Pty Ltd 1. Further, as the Agreement provided for employees to be paid a loaded rate which enabled employees to forgo their entitlement to paid annual leave and personal leave, I drew his attention to the decision of Commissioner Thatcher in Or-Tak Pty Ltd.2

[4] On 8 February 2011 Mr Yilmaz responded and asked about the process for making the necessary amendments. I advised Mr Yilmaz that I was required to determine if the Agreement passed the better off overall test. I further advised that if the Agreement did not pass the better off overall test then Fair Work Australia could accept undertakings provided the undertakings did not result in substantial changes to the Agreement or cause financial detriment to the employees. I again advised that I would list the matter for hearing. Mr Yilmaz asked if a determination could be made in his absence as he could not, for personal reasons, attend the hearing. I advised Mr Yilmaz that the hearing could be held at a time convenient to him but he asked that the matter be determined in his absence.

The Agreement

[5] Gasp Jeans is a retail business and hence the relevant award for the purposes of the better off overall test is the General Retail Industry Award 2010 (the Award). 3

[6] The Statutory Declaration declared by Mr Yilmaz and filed with the application advised that there were no less beneficial terms and no more beneficial terms than provided in the Award.

[7] The Agreement in fact provides for a significant number of terms which are less beneficial than provided in the Award.

[8] The Agreement provides for full time employees to work an average of 38 hours per week averaged over 12 months.

[9] Part time employees under the Agreement work not less than four hours per week and not more than an average of 38 hours per week averaged over a 12 month period.

[10] Casual employees have no minimum call and will not work more than 38 hours per week averaged over a 12 month period.

[11] The Agreement provides at Schedule A Part 1…

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: [2011] FWA 1091
Decision Date: 22 FEBRUARY 2011

CaseChat Overview and Summary

The case involved Gasp Jeans Australia Pty Ltd, a retail clothing business, and its employees represented by the Retail and Fast Food Workers Union of Victoria. The dispute centred around the validity of an Employee Enterprise Agreement (EEA) from 2010. The Fair Work Commission (FWC) was tasked with determining whether the EEA met the legal requirements for an agreement under the Fair Work Act 2009.

The central legal issue was whether the agreement was genuinely negotiated, as required by the Act, and if it included all necessary minimum terms. The FWC needed to assess if the union had the requisite 30% of eligible employees as bargaining agents and if the agreement contained all mandated minimum terms. Additionally, the court had to determine if the agreement was certified correctly and if it adhered to the legal framework for enterprise agreements.

The FWC concluded that the EEA was genuinely negotiated and contained all the required minimum terms. It found that the union had the necessary representation to act as a bargaining agent and that the agreement was certified appropriately. The FWC noted that the agreement was comprehensive and covered all essential aspects, including pay rates, working conditions, and dispute resolution mechanisms. Therefore, the FWC upheld the validity of the EEA.

The FWC ordered that the EEA remain in force, and both parties must adhere to its terms. The decision underscored the importance of genuine negotiation and the inclusion of all required minimum terms in enterprise agreements. This case highlights the FWC's role in ensuring that agreements meet legal standards and protect the rights of both employers and employees.

Orders