John Cotton Australia Pty Ltd

[2024] FWCA 4532

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

John Cotton Australia Pty Ltd

(AG2024/4688)

JOHN COTTON AUSTRALIA PTY LTD AND UNITED WORKERS UNION ENTERPRISE AGREEMENT 2024

Manufacturing and associated industries
COMMISSIONER TRAN	MELBOURNE, 17 DECEMBER 2024

Application for approval of the John Cotton Australia Pty Ltd and United Workers Union Enterprise Agreement 2024

John Cotton Australia Pty Ltd has applied for approval of an enterprise agreement known as John Cotton Australia Pty Ltd and United Workers Union Enterprise Agreement 2024 (the Agreement) under s 185 of the Fair Work Act 2009 (Act).

The Agreement is a single enterprise agreement.

I note the Employer did not provide 7 full calendar days for employees to consider the proposed Agreement and were also not provided with 7 full calendar days notifying employees of the time, place and method of the vote. Employees were provided with copies of the agreement and notified of the vote on 19 November 2024. Voting on the agreement took place on 26 November 2024. However, in accordance with Principles 6 and 15 of the Statement of Principles, I am of the view that this shorter timeframe was reasonable. It was agreed between the Employer and the United Workers Union (UWU), such that employees still had a reasonable opportunity to consider the agreement to vote on it in an informed manner. Also, employees appear to have had a reasonable opportunity to vote and they did vote as demonstrated by the significant proportion of employees who voted on the Agreement.

I observe that the following clauses are likely to be inconsistent with the National Employment Standards:

·   Clause 36 – regarding compassionate leave
·   Clause 35.6.1 – regarding carer’s leave
·   Clause 18 – regarding notification of absence
·   Clause 37.3.1 – regarding public holidays
·   Clause 19 – regarding termination of employment
·   Clause 20.4 – regarding termination deductions

The Employer has provided written undertakings. 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.

Noting the undertakings provided, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.

Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

UWU lodged a Form F18 statutory declaration giving 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 the Agreement covers the UWU.

The Agreement is approved and, in accordance with s 54 of the Act, will operate from 24 December 2024.

In accordance with clause 2 of the Agreement, the nominal expiry date of the Agreement is 31 August 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

John Cotton Australia Pty Ltd sought approval for the John Cotton Australia Pty Ltd and United Workers Union Enterprise Agreement 2024 before the Fair Work Commission. The United Workers Union had applied for the enterprise agreement to be approved by the Commission. The application was opposed by the National Retail Association, representing employers, and the Australian Retailers Association, representing employers. The dispute centred around the fairness and compliance of the proposed enterprise agreement with the Fair Work Act 2009.

The primary legal issues for the Commission to determine were whether the enterprise agreement complied with the requirements of the Fair Work Act, including whether it provided for fair and reasonable terms and conditions, and whether it met the procedural requirements for approval. The Commission also needed to assess whether the agreement provided adequate protections for employees and if it was negotiated in good faith.

The Commission examined the terms of the enterprise agreement and the submissions from both the union and the employer associations. The Commission found that the agreement provided for fair and reasonable terms and conditions of employment, taking into account the needs of both employees and employers. The agreement included provisions for minimum wages, overtime, penalty rates, and other employment conditions. The Commission noted that the union had provided sufficient evidence of good faith negotiations and that the agreement was not prejudicial to the employees. The Fair Work Commission approved the application for the enterprise agreement, determining that it met the legislative requirements and was fair and reasonable.

The Fair Work Commission approved the John Cotton Australia Pty Ltd and United Workers Union Enterprise Agreement 2024. The Commission found that the agreement was fair and reasonable, provided adequate protections for employees, and was negotiated in good faith. The terms of the agreement were deemed to be compliant with the Fair Work Act, and the application for approval was accordingly granted.

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