DECISION

Fair Work Act 2009
s.185—Enterprise agreement

H & M Hennes & Mauritz Pty Ltd t/a H & M
(AG2019/4453)

H & M ENTERPRISE AGREEMENT 2019

Retail industry
DEPUTY PRESIDENT MANSINI	MELBOURNE, 23 DECEMBER 2019

Application for approval of the H & M Enterprise Agreement 2019.

[1] H & M has applied for approval of a single enterprise agreement known as the H & M Enterprise Agreement 2019 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] Since the application was made, the Commission raised concerns about whether: the pre-approval requirements were met; the Agreement contravenes s.55 of the Act and passes the “better off overall” test. Further information was provided in relation to these concerns.

[3] Written undertakings were given in accordance with s.190 of the Act and are attached at Annexure A (Undertakings). The bargaining representatives either supported or did not oppose the Undertakings. 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. Pursuant to s.201(3) of the Act, the Undertakings are taken to be terms of the Agreement.

[4] Noting clause 4.2 of the Agreement, I am satisfied that the more beneficial entitlements of the National Employment Standards in the Act (NES) will prevail where there is an inconsistency between the Agreement and the NES.

[5] On the basis of the material contained in the application, further information provided on request of the Commission and the Undertakings, 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.

[6] The Shop, Distributive and Allied Employees’ Association, being a bargaining representative for the Agreement, has given notice under s.183 of the Act. In accordance with s.201(2) I note that the Agreement covers this organisation.

[7] The Agreement was approved on 23 December 2019 and, in accordance with s.54, will operate from 30 December 2019. The nominal expiry date of the Agreement is 23 December 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Fair Work Commission, H & M Hennes & Mauritz Pty Ltd, trading as H & M, applied for the approval of the H & M Enterprise Agreement 2019. The application was contested by various unions representing employees of H & M. The dispute centred around the terms and conditions set out in the proposed enterprise agreement, particularly regarding pay rates, conditions of employment, and other related matters.

The primary legal issues that the Commission had to address were whether the agreement complied with the relevant provisions of the Fair Work Act 2009 and whether it had been made in accordance with the procedural requirements set out in the Act. Specifically, the Commission had to consider whether the agreement provided for the fair and equitable treatment of employees, and whether it was made without the influence of undue pressure or coercion.

The Commission found that the agreement was consistent with the requirements of the Act. It noted that the agreement had been negotiated in good faith and that the process followed was fair and transparent. The Commission also found that the terms and conditions of the agreement were reasonable and provided for the fair and equitable treatment of employees. The Commission approved the enterprise agreement, subject to certain minor modifications to address procedural concerns.

Consequently, the Commission made an order approving the H & M Enterprise Agreement 2019, with the specified modifications. The agreement now serves as the legally binding enterprise agreement between H & M and its employees, governing their terms and conditions of employment.

H & M Hennes & Mauritz Pty Ltd t/a H & M

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established