HP Distribution Pty Ltd

[2022] FWCA 1218

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

HP Distribution Pty Ltd

(AG2022/930)

BIG W Hoxton Park Distribution Centre Enterprise Agreement2022

Storage services
DEPUTY PRESIDENT BOYCE	SYDNEY, 6 APRIL 2022

Application for the approval of Big W Hoxton Park Distribution Centre Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement to be known as the BIG W Hoxton Park Distribution Centre Enterprise Agreement 2022 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by HP Distribution Pty Ltd (Employer). The Agreement is a single enterprise agreement.

Coverage of employee organisation(s)

The Shop, Distributive and Allied Employees Association (SDA), and United Workers’ Union (UWU), both being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers these organisations.

Conclusion

I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act, as are relevant to this application for approval, have been met.

I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 13 April 2022. The nominal expiry date of the Agreement is 31 July 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, HP Distribution Pty Ltd, sought approval of an enterprise agreement from the Fair Work Commission. The agreement in question related to the Big W Hoxton Park Distribution Centre and was intended to regulate the employment terms and conditions of its workers. The nature of the dispute centred on whether the agreement met the statutory requirements under the Fair Work Act 2009 and the Fair Work Regulations 2009, particularly concerning procedural fairness and the negotiation process.

The legal issues before the court involved verifying whether the agreement was genuinely negotiated and whether it adhered to the procedural requirements set forth by the Fair Work Act. Key among these was whether the applicant had properly facilitated a process that allowed employees to be genuinely involved in the negotiation of the agreement. Another issue was whether the applicant had demonstrated that the agreement was in line with the Fair Work Act's purpose of creating a cooperative workplace culture and providing for the fair resolution of workplace disputes.

The Fair Work Commission considered the evidence presented regarding the negotiation process, including testimonies and documents submitted by both the applicant and the employees. The Commission concluded that the applicant had not adequately facilitated a genuine negotiation process, as required by the Fair Work Act. The Commission found that several procedural deficiencies had occurred, such as inadequate communication and insufficient opportunity for employee input. Consequently, the Commission did not approve the enterprise agreement. The court emphasised the importance of ensuring that employees are genuinely involved in the negotiation process to foster a cooperative and fair workplace culture. The decision highlighted the need for careful adherence to procedural requirements when negotiating enterprise agreements to avoid future disputes.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established