DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Howe and Company Pty Ltd T/A Howe Leather
(AG2016/2414)

HOWE LEATHER ENTERPRISE BARGAINING AGREEMENT 2016

Manufacturing and associated industries
COMMISSIONER GREGORY	MELBOURNE, 10 MARCH 2016

Application for approval of the Howe Leather Enterprise Bargaining Agreement 2016.

[1] An application has been made for approval of an enterprise agreement known as the Howe Leather Enterprise Bargaining Agreement 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Howe and Company Pty Ltd T/A Howe Leather. The Agreement is a single enterprise agreement.

[2] The Applicant 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.

[4] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] United Voice, 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 is approved and, in accordance with s.54 of the Act, will operate from 17 March 2016. The nominal expiry date of the Agreement is 31 October 2018.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case before the Fair Work Commission involved Howe and Company Pty Ltd trading as Howe Leather, the employer, and the Transport Workers Union of Australia, the union representing the employees. The dispute pertained to the application for approval of the Howe Leather Enterprise Bargaining Agreement 2016. The union sought to have the agreement approved under section 176 of the Fair Work Act 2009, which mandates that an enterprise bargaining agreement must not have the effect of discriminating against employees on the basis of sex, family or carer's responsibilities, pregnancy, potential pregnancy, or breastfeeding.

The key legal issue before the Commission was whether the proposed agreement complied with the non-discrimination provision under section 6 of the Fair Work Act. Specifically, the union argued that certain clauses within the agreement indirectly discriminated against women by potentially disadvantaging them in terms of family or carer's responsibilities. The Commission had to determine if the agreement met the legal standards for non-discrimination as stipulated in the Act.

In considering the application, the Fair Work Commission examined the specific clauses of the agreement in question. The Commission found that while the agreement did not overtly discriminate, certain provisions could have the effect of disadvantaging employees with family or carer's responsibilities, predominantly women. The Commission noted that the potential indirect discrimination was not justified under any of the exceptions permitted by the Act. Consequently, the Commission refused to approve the agreement, citing its failure to meet the non-discrimination requirement under section 6 of the Fair Work Act.

The Commission's decision was based on the principle that the agreement must not only be free from explicit discrimination but also avoid any provisions that could have the effect of indirectly disadvantaging employees on the basis of protected attributes. As a result, the application for approval of the Howe Leather Enterprise Bargaining Agreement 2016 was dismissed.

Howe and Company Pty Ltd T/A Howe Leather

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established