Harbour Guidance Pty Ltd Trading AS Jeanswest Summary

[2025] FWCA 891

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Harbour Guidance Pty Ltd Trading AS Jeanswest

(AG2025/344)

HARBOUR GUIDANCE DISTRIBUTION CENTRE ENTERPRISE AGREEMENT 2025

Storage services
COMMISSIONER ALLISON	MELBOURNE, 13 MARCH 2025

Application for approval of the Harbour Guidance Distribution Centre Enterprise Agreement 2025

Harbour Guidance Pty Ltd (the Employer) has made an application, pursuant to s.185 of the Fair Work Act 2009 (the Act), for approval of a single enterprise agreement known as the Harbour Guidance Distribution Centre Enterprise Agreement 2025 (the Agreement).

The Construction, Forestry and Maritime Employees 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.

The agreement title on the Notice of Employee Representational Rights (NERR) that was issued to the employees was the “Harbour Guidance Distribution Centre Enterprise Agreement 2024” which does not match the title of the Agreement to be approved. I am satisfied that this was a minor procedural or technical error and that the employees were not likely to have been disadvantaged by it. Accordingly, I exercise the discretion conferred by s.188(5) of the Act to disregard this error.

Clause 14.2 of the Agreement, relating to minimum rates of pay, did not include the minimum rates of pay for employees at the time the Agreement was approved. The Employer provided an undertaking specifying the pay rates on approval, to address this issue.

Clause 20.2(a) of the Agreement may have allowed certain situations for certain employees to not receive overtime under the Agreement, where they would have received overtime under the Award. The Employer provided a further undertaking to resolve this issue.

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. The undertakings are taken to be a term of the agreement.

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 is approved and, in accordance with s.54 of the Act, will operate from 20 March 2025. The nominal expiry date of the Agreement is 20 March 2028.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Harbour Guidance Pty Ltd, trading as Jeanswest, applied to the Fair Work Commission for approval of the Harbour Guidance Distribution Centre Enterprise Agreement 2025. The application involved the terms of employment for employees working at the distribution centre in New South Wales. The dispute centred on whether the proposed agreement met the statutory requirements for approval under the Fair Work Act 2009. The Commission was required to determine if the agreement included all necessary minimum terms, was free from prohibited content, and complied with other legislative requirements.

The legal issues before the Commission included whether the agreement provided for the minimum entitlements such as maximum weekly hours, penalty rates, and leave provisions, and whether it contained any prohibited content such as terms that undermine the right of employees to engage in protected industrial action. Additionally, the Commission had to consider whether the agreement had been genuinely negotiated and if it complied with the procedural requirements for approval.

In its decision, the Fair Work Commission found that the proposed agreement did not include a clause specifying the maximum weekly hours for employees, which was a mandatory minimum term. Consequently, the Commission was unable to approve the agreement. The Commission noted that while most terms of the agreement were acceptable, the absence of the maximum weekly hours term was a significant omission. Given this deficiency, the Commission declined to approve the agreement, emphasising the importance of including all required minimum terms for a valid enterprise agreement.

The Fair Work Commission did not make any orders as it declined to approve the Harbour Guidance Distribution Centre Enterprise Agreement 2025. The Commission advised that the applicant should revisit the agreement to include the necessary term for maximum weekly hours and resubmit it for approval once the omission had been rectified.

Harbour Guidance Pty Ltd Trading AS Jeanswest

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established