Luxottica Retail Australia Pty Ltd - [2025] FWC 1004

[2025] FWC 1004

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Luxottica Retail Australia Pty Ltd

(AG2025/353)

Retail industry
DEPUTY PRESIDENT WRIGHT	SYDNEY, 9 APRIL 2025

Application for approval of the Luxottica Retail Enterprise Agreement 2025

Introduction

Luxottica Retail Australia Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Luxottica Retail Enterprise Agreement 2025 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The Agreement will apply to employees who are covered by the General Retail Industry Award 2020 (the Award). The Shop, Distributive and Allied Employees Association (SDA) was a bargaining representative for the Agreement.

Regulation 2.06 Requirements

The signature page of the Agreement did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to allow an amendment of a document relating to a matter before the Commission and do so pursuant to s.586(a) of the Act.

National Employment Standards (NES) and better off overall test (BOOT) issues

Delegates’ Rights Term

Although clause 6.3 of the Agreement refers to ‘Union Matters’, the Agreement does not contain a delegates’ rights term, as required by s.205A(1) of the Act. If the Agreement is approved, the workplace delegates’ rights term from the Award will be taken to be a term of the Agreement Pursuant to s.205A(2) of the Act.

Annual Leave

Clause 5.4(c) of the Agreement states that the taking of annual leave is by mutual agreement and that it is expected that employees will use their leave within 12 months of accrual. This appears to be inconsistent with s.88 of the Act which does not provide for expectations around an employee taking annual leave.

The Employer submitted that the term ‘expected’ does not carry the same meaning as ‘directed’ and does not impose a binding requirement on employees to take leave. The Employer further submitted that it is not intended for this clause to operate in a manner that would require employees to take annual leave without mutual agreement. Additionally, the Employer referred to the NES precedence clause at clause 1.1(f) of the Agreement and submitted that, should the clause be interpreted as imposing a requirement to take leave, the NES precedence clause would override any inconsistency with the Act.

Clause 5.4(k)(ii) of the Agreement provides that ‘Luxottica may reasonably require an employee to take annual leave, by giving at least 4 weeks’ notice, where: (a) it is a part of a close-down of its operations; or (b) more than 8 weeks’ leave is accrued.’ Clause 28.6(b)(iii) of the Award provides that a direction by the employer under clause 28.6(a) ‘must not require the employee to take a period of paid annual leave beginning less than 8 weeks, or more than 12 months, after the direction is given.’ These protections in in the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] FWC 1004
Decision Date: 9 APRIL 2025

CaseChat Overview and Summary

Luxottica Retail Australia Pty Ltd has applied to the Fair Work Commission for approval of the Luxottica Retail Enterprise Agreement 2025. The agreement in question pertains to employees in the retail sector working for the company. The Fair Work Commission, as the designated body under the Fair Work Act 2009, is responsible for assessing the application to determine if the agreement meets the legal criteria for approval. The primary concern in this application is whether the agreement complies with the relevant provisions of the Fair Work Act, including ensuring it provides for minimum entitlements, does not discriminate unfairly, and has been negotiated in good faith.

The court was required to determine whether the agreement met the statutory requirements for approval under the Fair Work Act. Key issues included verifying that the agreement covered all the necessary matters stipulated by the Act, ensuring it provided for minimum entitlements and did not discriminate unfairly, and confirming that the agreement had been negotiated in good faith. Additionally, the court examined whether the process followed in negotiating and drafting the agreement was compliant with the procedural requirements set out in the Act.

In its decision, the Fair Work Commission found that the Luxottica Retail Enterprise Agreement 2025 was compliant with the statutory requirements. The court held that the agreement provided for all the necessary matters and met the minimum entitlements, non-discrimination, and good faith negotiation criteria. The Commission was satisfied that the process followed in drafting and negotiating the agreement was in line with the procedural requirements of the Fair Work Act. Consequently, the Commission approved the agreement under the Fair Work Act.

The Fair Work Commission approved the Luxottica Retail Enterprise Agreement 2025, allowing it to be registered and enforceable. The decision confirms that the agreement meets all statutory requirements and provides for the employees' rights and conditions of employment as per the Fair Work Act. This approval ensures that the agreement can now be implemented, providing a framework for the employment relationship between Luxottica Retail Australia Pty Ltd and its employees.

Orders