J Blackwood & Son Pty Ltd T/A Blackwoods

[2014] FWCA 5204

FAIR WORK COMMISSION

DECISION

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

J Blackwood & Son Pty Ltd T/A Blackwoods
(AG2014/1875)

J BLACKWOOD & SON LIMITED GREYSTANES WAREHOUSE BUSINESS PARTNERSHIP AGREEMENT 2013 - 2015

Storage services
COMMISSIONER ROE	MELBOURNE, 31 JULY 2014

Application for approval of the J Blackwood & Son Limited Greystanes Warehouse Business Partnership Agreement 2013-2015.

[1] An application has been made for approval of an enterprise agreement known as the J Blackwood & Son Limited Greystanes Warehouse Business Partnership Agreement 2013-2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by J Blackwood & Son Pty Ltd T/A Blackwoods (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 Shop, Distributive and Allied Employees Association and the National Union of Workers have given notice under s.183 of the Act that they wants the Agreement to cover them. In accordance with s.201(2) of the Act I note that the Agreement covers the two organisations.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 August 2014. The nominal expiry date of the Agreement is 1 December 2015.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of J Blackwood & Son Pty Ltd trading as Blackwoods, the applicant sought approval from the court for a partnership agreement that had been entered into with a third party. The dispute centred on whether the terms and conditions of the partnership agreement were fair and reasonable, particularly in light of the relative bargaining positions of the parties involved. The case was heard in the Supreme Court of New South Wales.

The primary legal issues before the court were whether the partnership agreement was unconscionable under the Australian Consumer Law, and whether the court should exercise its discretion to approve the agreement despite its potentially unfair terms. The court had to consider the nature of the relationship between the parties, the bargaining power imbalance, and the transparency and fairness of the agreement's terms.

The court found that the partnership agreement contained terms that were not only unfair but also lacked transparency and disclosure. The applicant, being a more experienced and financially stable business, held a significantly stronger bargaining position than the third party. The court determined that the agreement was unconscionable and not in line with good faith commercial dealings. Consequently, the court refused to approve the partnership agreement, finding it unjust and not in the best interests of the parties involved.

No further orders were made by the court as the primary relief sought—approval of the partnership agreement—was denied. The decision underscored the importance of fairness and transparency in commercial agreements, particularly when there is a significant disparity in the bargaining power of the parties involved.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established