DECISION

Fair Work Act 2009
s.185—Enterprise agreement

GSM (Operations) Pty Ltd T/A Billabong
(AG2018/5705)

BILLABONG GROUP DISTRIBUTION CENTRE TCFUA ENTERPRISE AGREEMENT 2018

Clothing industry
COMMISSIONER HARPER-GREENWELL	MELBOURNE, 1 APRIL 2019

Application for approval of the Billabong Group Distribution Centre TCFUA Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Billabong Group Distribution Centre TCFUA Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by GSM (Operations) Pty Ltd T/A Billabong. The Agreement is a single enterprise agreement.

[2] The Employer 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. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[4] I observe that clauses 14(b), 14(d) and 23.2(f) of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 7.2 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[5] The Construction, Forestry, Maritime, Mining and Energy Union, 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 was approved on 1 April 2019 and, in accordance with s.54, will operate from 8 April 2019. The nominal expiry date of the Agreement is 30 June 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

GSM (Operations) Pty Ltd, trading as Billabong, applied to the Fair Work Commission for approval of the Billabong Group Distribution Centre TCFUA Enterprise Agreement 2018. The application was made under section 234 of the Fair Work Act 2009. The dispute centred around whether the agreement met the requirements for direct application under the Act, specifically the "better off overall test" and whether it complied with the terms of the Act and the Fair Work Regulations.

The court had to determine whether the agreement was in the public interest, as per section 233 of the Act, and if it met the "better off overall test" as outlined in section 172. The court also needed to assess if the agreement complied with the Act and its regulations, including provisions regarding minimum wage rates, penalty rates, and maximum weekly hours. Additionally, the court had to consider whether the agreement provided for proper consultation and negotiation processes between the employer and employees.

The Fair Work Commission found that the agreement was in the public interest and met the "better off overall test." The agreement provided for fair compensation, reasonable working conditions, and adhered to the terms of the Fair Work Act and its regulations. The Commission also determined that the negotiation process was appropriate and that the agreement complied with all relevant legal requirements. The Commission approved the agreement, allowing it to be directly applied as a registered agreement under the Act.

The Fair Work Commission approved the Billabong Group Distribution Centre TCFUA Enterprise Agreement 2018, allowing it to be directly applied as a registered agreement. The Commission's decision confirmed that the agreement met the public interest criteria and the "better off overall test" and complied with the Act and its regulations. This approval ensures that the agreement will provide for fair and reasonable working conditions for employees in the distribution centre.

GSM (Operations) Pty Ltd T/A Billabong

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established