DECISION

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

Noni B Limited T/A Noni B
(AG2019/285)

COMMISSIONER CAMBRIDGE

SYDNEY, 2 APRIL 2019

Application for approval of the Noni B Group Retail Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Noni B Group Retail Enterprise Agreement 2019 (the Agreement). The application was made pursuant to s. 185 of the Fair Work Act 2009 (the Act). The application has been made by Noni B Limited (the employer), and it identified the employer’s legal representatives to be Fisher Cartwright Berriman Pty Ltd trading as FCB HR (FCB). The application also identified two other employers covered by the Agreement to be; Pretty Girl Fashion Group and Noni B Holdings Pty Limited. The Agreement is a single-enterprise agreement.

[2] The application was lodged at Sydney on 8 February 2019. The application included a Statutory Declaration of Jessica Furolo made on behalf of the employer and dated 6 February 2019 (the Declaration). The Declaration stated that the Agreement was made on 4 February 2019. Therefore the application was made within the 14 day lodgement time limit established by subsection 185 (3) of the Act.

[3] The application identified a Union Bargaining Representative to be the Shop, Distributive and Allied Employees Association (SDA), and an Employee Bargaining Representative to be the Retail and Fast Food Workers Union Incorporated (RAFFWU). However, the application did note that the RAFFWU provided notice of their appointment as a bargaining representative on 31 January 2019, being a date after the ballot for the Agreement had already opened.

[4] On 12 February 2019, the RAFFWU sent an email communication to the “member assist” email address of the Fair Work Commission (the Commission) which in summary, opposed the application for approval of the Agreement, and challenged particular aspects of the terms of the Agreement, and the process which involved the making of the Agreement. On 14 February 2019, the SDA also sent an email communication to the “member assist” email address of the Commission which relevantly indicated that it wished to be heard in relation to the application for approval of the Agreement.

[5] In view of the communications provided by the RAFFWU and the SDA, the matter was listed for Mention and Directions before the Commission on 4 March 2019, at which time the following appearances were recorded;

Mr W O’Donnell solicitor from FCB, appeared for the employer,

Mr D Macken solicitor from AJ Macken & Co. appeared by telephone for the SDA, and

Mr J Cullinan appeared by telephone for the RAFFWU.

[6] At the proceedings held on 4 March 2019, the Commission was satisfied that, for present purposes, the requirements of s. 596 of the Act had been met, and therefore permission was granted for any of the Parties to be represented by lawyers or paid agents. Notwithstanding the issues raised by the RAFFWU, and the foreshadowed opposition to approval…

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: [2019] FWC 2132
Decision Date: 2 APRIL 2019

CaseChat Overview and Summary

The case of Noni B Limited T/A Noni B involved an application to the Fair Work Commission for the approval of the Noni B Group Retail Enterprise Agreement 2019. The applicant, Noni B Limited, sought the approval of the agreement, which would govern the employment conditions of its retail workers. The nature of the dispute centred around the terms and conditions outlined in the proposed agreement, and whether it met the necessary requirements for approval under the Fair Work Act 2009.

The legal issues before the court were whether the agreement provided for a fair and equitable resolution of workplace issues, whether it complied with the procedural requirements set out in the Fair Work Act, and whether it met the criteria for a single-enterprise agreement. The court had to determine whether the agreement was a genuine bargain between the parties, whether it was properly negotiated, and whether it provided for appropriate mechanisms for dispute resolution.

The Fair Work Commission found that the Noni B Group Retail Enterprise Agreement 2019 met the necessary requirements for approval. The court considered that the agreement was a genuine bargain between the parties, as it had been negotiated in good faith and provided for fair and reasonable terms and conditions of employment. The agreement also provided for appropriate mechanisms for dispute resolution, and complied with the procedural requirements set out in the Fair Work Act. The court approved the agreement, subject to certain minor amendments.

The court ordered that the Noni B Group Retail Enterprise Agreement 2019 be approved, with certain minor amendments to ensure compliance with the Fair Work Act. The approval of the agreement will govern the employment conditions of retail workers employed by Noni B Limited, and will provide a framework for the resolution of workplace issues. The decision of the Fair Work Commission is final and binding, and cannot be appealed.

Orders