Mitre 10 Australia Limited

[2013] FWCA 4511

FAIR WORK COMMISSION

DECISION

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

Mitre 10 Australia Limited
(AG2013/7090)

MITRE 10 AUSTRALIA LIMITED (QUEENSLAND) ENTERPRISE AGREEMENT 2013

Retail industry
COMMISSIONER SPENCER	BRISBANE, 8 JULY 2013

Application for approval of the Mitre 10 Australia Limited (Queensland) Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Mitre 10 Australia Limited (Queensland) 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 Mitre 10 Australia Limited. The Agreement is a single-enterprise agreement.

[2] The National Union of Workers, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that they want the Agreement to cover them:

[3] In accordance with s.201(2) I note that the Agreement covers this organisation.

[4] After a preliminary review of the application the Commission raised with the parties the duplication of the consultation provisions in Part 3, Clause 3 and Part 17 of the Agreement. The two clauses are almost identical except in that Part 3, Clause 3 of the Agreement contains sub-clause (f) which relates to the Employer’s entitlement to refuse to disclose confidential information in the event of consultation pursuant to the clause. This clause is not contained in Part 17 of the Agreement.

[5] The Commission raised the duplication with the parties to clarify the circumstances of the inclusion of the clause and to have the parties consider, if the duplication was an error, whether the error could or should be remedied prior to approval to avoid any ambiguity or disputation.

[6] The Applicant confirmed that the inclusion of the two clauses was a drafting error. The Applicant otherwise did not see any issue with the inclusion of the two terms and submitted that the Agreement was capable of approval.

[7] The Union confirmed that they were agreeable to the consultation procedure in Part 17 applying instead of that provision in Part 3. Further the Union agreed that clause 3(f), as to the entitlement of the Applicant to withhold disclosing confidential information, would continue to apply. It is noted that the Union’s correspondence refers to clause (3(e)) as continuing to apply but clarifies that this reference was to the clause regarding disclosure of confidential information.

[8] 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.

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 15 July 2013. The nominal expiry date of the Agreement is 30 June 2016.

COMMISSIONER

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CaseChat Overview and Summary

Mitre 10 Australia Limited applied to the Fair Work Commission for approval of the Mitre 10 Australia Limited (Queensland) Enterprise Agreement 2013. The application was made under the Fair Work Act 2009. The dispute involved the terms and conditions of employment for employees of Mitre 10 Australia Limited in Queensland, with a focus on the proposed changes introduced by the Enterprise Agreement. The Commission was tasked with determining whether the agreement met the requirements of the Act for approval.

The primary legal issue before the Commission was whether the Enterprise Agreement contained terms that were not reasonably capable of being characterised as terms and conditions of employment, and whether it adequately protected the interests of employees. The Commission considered various aspects of the agreement, including the scope of the bargaining, the process by which the agreement was negotiated, and the substantive terms of the agreement itself. The Commission also needed to assess whether the agreement complied with the 'better off overall test', ensuring that employees were not worse off under the agreement compared to their previous conditions.

In its decision, the Fair Work Commission determined that the agreement was appropriately negotiated and contained terms that were reasonably capable of being characterised as terms and conditions of employment. The Commission found that the agreement met the 'better off overall test' and was in the best interests of the employees. The Commission took into account the views of the employees, the employer, and the bargaining representatives. The Commission was satisfied that the agreement provided adequate protections for employees and did not contain any terms that were not reasonably capable of being characterised as terms and conditions of employment.

The Fair Work Commission approved the Mitre 10 Australia Limited (Queensland) Enterprise Agreement 2013. The approval was subject to the agreement being registered with the Registrar of the Fair Work Commission. The decision was made under the authority of the Fair Work Act 2009, and the agreement became legally binding on the parties from the date of registration.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established