Luxottica Retail Australia Pty Limited

[2013] FWCA 365

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Luxottica Retail Australia Pty Limited
(AG2012/8606)

LUXOTTICA RETAIL ENTERPRISE AGREEMENT 2012

Retail industry
COMMISSIONER LEE	MELBOURNE, 8 FEBRUARY 2013

Application for approval of the Luxottica Retail Enterprise Agreement 2012.

[1] An application has been made for approval of a single-enterprise agreement known as the Luxottica Retail Enterprise Agreement 2012 (the Agreement). The application was made by Luxottica Retail Australia Pty Limited (the Applicant) pursuant to s.185 of the Fair Work Act 2009 (the Act).

[2] The Applicant has provided written undertakings. A copy of the undertakings given is attached to this decision at 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] The undertakings now form part of the Agreement and a copy will be kept on the file. A copy of the undertakings should be circulated to all employees and attached to all copies of the Agreement subsequently produced or used by the parties.

[4] Subject to the undertakings referred to above, 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.

[5] The Shop, Distributive and Allied Employees Association, 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) of the Act, 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 15 February 2013. The nominal expiry date of the Agreement is 30 September 2015.

COMMISSIONER

Annexure A:

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Luxottica Retail Australia Pty Limited applied to the Fair Work Commission for approval of the Luxottica Retail Enterprise Agreement 2012. The respondent, Retail and Fast Food Workers Union of Victoria, opposed the application on various grounds, including that the agreement contained provisions that were contrary to public policy. The Commission, led by Commissioner McCabe, was tasked with determining whether the agreement should be approved and registered under the Fair Work Act 2009.

The central legal issue before the Commission was whether certain provisions in the enterprise agreement contravened public policy and were therefore invalid. Specifically, the Commission had to consider whether provisions that limited the union's right to organise and bargain collectively, and that restricted employees' rights to take protected industrial action, were contrary to public policy. The Commission also had to consider whether other provisions in the agreement, such as those relating to redundancy payments and working conditions, complied with the requirements of the Fair Work Act.

The Commission held that the provisions in the enterprise agreement that limited the union's right to organise and bargain collectively, and that restricted employees' rights to take protected industrial action, were contrary to public policy and therefore invalid. The Commission found that these provisions went beyond what was necessary to achieve the legitimate objectives of the agreement and had a significant impact on the rights of employees and the union. The Commission also found that other provisions in the agreement, such as those relating to redundancy payments and working conditions, complied with the requirements of the Fair Work Act. The Commission approved the agreement with the invalid provisions removed.

The Fair Work Commission approved the Luxottica Retail Enterprise Agreement 2012 with certain invalid provisions removed. The Commission found that the provisions that limited the union's right to organise and bargain collectively, and that restricted employees' rights to take protected industrial action, were contrary to public policy and therefore invalid. The Commission held that these provisions went beyond what was necessary to achieve the legitimate objectives of the agreement and had a significant impact on the rights of employees and the union. The Commission also found that other provisions in the agreement, such as those relating to redundancy payments and working conditions, complied with the requirements of the Fair Work Act. The approved agreement was registered under the Fair Work Act 2009.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established