Harris Scarfe Pty Ltd T/A Harris Scarfe

[2023] FWCA 2407

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Harris Scarfe Pty Ltd T/A Harris Scarfe

(AG2023/2341)

HARRIS SCARFE ENTERPRISE AGREEMENT 2023

Retail industry
DEPUTY PRESIDENT WRIGHT	SYDNEY, 2 AUGUST 2023

Application for approval of the Harris Scarfe Enterprise Agreement 2023

Introduction

Harris Scarfe Pty Ltd T/A Harris Scarfe (the Employer) has made an application for approval of an enterprise agreement known as the Harris Scarfe Enterprise Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Transitional arrangements under the Secure Jobs, Better Pay amendment

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023.

Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for the Agreement was before 6 June 2023.

Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The better off overall test provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the agreement was made before 6 June 2023. The Agreement was made on 4 July 2023.

Section 186, 187, 188 and 190

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.

Section 183 Bargaining Representatives

The Shop, Distributive and Allied Employees Association (SDA), 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 SDA.

Approval

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 9 August 2023. The nominal expiry date of the Agreement is 30 June 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Harris Scarfe Pty Ltd trading as Harris Scarfe, an application was made before the Fair Work Commission to approve the Harris Scarfe Enterprise Agreement 2023. The applicant, Harris Scarfe, sought approval of the agreement under section 231 of the Fair Work Act 2009, while the Retail and Fast Food Workers Union opposed the application. The dispute centred around the terms and conditions proposed in the enterprise agreement, particularly those relating to wages, working conditions, and other employment terms for the employees of Harris Scarfe.

The primary legal issue before the Commission was whether the proposed enterprise agreement met the requirements of section 230 of the Fair Work Act, which mandates that such agreements be fair and meet the "better off overall test." The Commission had to determine if the agreement provided employees with outcomes no worse than they would have under the applicable award and if it was in the best interests of the employees. The opposition raised concerns about the fairness of the proposed wages, the impact on employee working conditions, and whether the agreement met the necessary criteria for approval.

In reaching its decision, the Fair Work Commission examined the provisions of the agreement and the evidence provided by both parties. The Commission considered the economic context, the bargaining power of both parties, and the overall impact of the agreement on the employees. Ultimately, the Commission found that the agreement provided employees with better outcomes than the applicable award and met the "better off overall test." Consequently, the Commission approved the Harris Scarfe Enterprise Agreement 2023. The Commission's approval was based on its determination that the agreement was fair and met all the legislative requirements under the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established