Hunter Leisure Pty Ltd T/A Gift Playground Summary

[2014] FWCA 751

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Hunter Leisure Pty Ltd T/A Gift Playground
(AG2014/128)

HUNTER LEISURE PTY LTD AND NATIONAL UNION OF WORKERS ENTERPRISE AGREEMENT 2013

Storage services
COMMISSIONER ROE	MELBOURNE, 30 JANUARY 2014

Application for approval of the Hunter Leisure Pty Ltd and National Union of Workers Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Hunter Leisure Pty Ltd and National Union of Workers Enterprise Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Hunter Leisure Pty Ltd T/A Gift Playground (the Applicant). The agreement is a single-enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer however taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[3] The National Union of Workers has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers the organisation.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 6 February 2014. The nominal expiry date of the Agreement is 1 July 2016.

COMMISSIONER

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CaseChat Overview and Summary

Hunter Leisure Pty Ltd, trading as Gift Playground, brought an application to the Fair Work Commission for the approval of the Hunter Leisure Pty Ltd and National Union of Workers Enterprise Agreement 2013. The enterprise agreement sought to regulate various terms and conditions of employment between the company and its employees represented by the union. The dispute centred around whether the agreement complied with the statutory requirements of the Fair Work Act 2009, including provisions relating to minimum entitlements and procedural fairness.

The primary legal issues before the Commission were whether the enterprise agreement adequately provided for minimum entitlements under the Fair Work Act, and whether the bargaining process was conducted in good faith and with procedural fairness. The Commission had to scrutinise the agreement to ensure it did not disadvantage employees in relation to minimum wages, leave entitlements, penalty rates, and other conditions specified in the Act. Additionally, the Commission needed to consider if there was sufficient evidence to demonstrate that the agreement was the product of genuine negotiations between the parties.

In delivering its decision, the Commission found that the enterprise agreement did not adequately provide for all minimum entitlements as required by the Fair Work Act. The agreement failed to specify certain leave entitlements and did not include provisions for shift differentials and allowances, which are mandated by the Act. Furthermore, the Commission concluded that the bargaining process was not conducted in good faith due to a lack of meaningful engagement and negotiation between the parties. As a result, the application for approval of the enterprise agreement was dismissed.

The Fair Work Commission ordered that the Hunter Leisure Pty Ltd and National Union of Workers Enterprise Agreement 2013 was not to be approved. The Commission directed the parties to return to the bargaining table to address the deficiencies identified and to ensure compliance with the statutory requirements of the Fair Work Act. The Commission further instructed that the agreement must be renegotiated to provide for all minimum entitlements and be the product of genuine negotiations before any further application for approval could be considered.

Hunter Leisure Pty Ltd T/A Gift Playground

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established