North Adelaide Service Partnership (Bellagon Investments Pty Ltd & Bellagon Pty Ltd & DA Romeo Pty Ltd as trustee for DA Romeo Holding Trust & J Romeo Pty Ltd as trustee for J Romeo Holding Trust) T/A Romeo’s... Summary

[2022] FWCA 2722

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

North Adelaide Service Partnership (Bellagon Investments Pty Ltd & Bellagon Pty Ltd & DA Romeo Pty Ltd as trustee for DA Romeo Holding Trust & J Romeo Pty Ltd as trustee for J Romeo Holding Trust) T/A Romeo’s Retail Group

(AG2022/3192)

Romeo’s Retail Group Enterprise Agreement 2022

Retail industry
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 12 AUGUST 2022

Application for approval of the Romeo’s Retail Group Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the Romeo’s Retail Group Enterprise Agreement 2022 (Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (Act). It has been made by North Adelaide Service Partnership (Bellagon Investments Pty Ltd & Bellagon Pty Ltd & DA Romeo Pty Ltd as trustee for DA Romeo Holding Trust & J Romeo Pty Ltd as trustee for J Romeo Holding Trust) T/A Romeo’s Retail Group. The Agreement is a single enterprise agreement.

I am satisfied that each of the requirements of ss 186, 187 and 188 as are relevant to this application for approval have been met.

Pursuant to s 202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

I observe that the following clauses are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 7 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES:

· Clause 16 does not provide that employees deemed to have abandoned their employment will be provided notice of termination entitlement in accordance with s 117(3) of the Act.[1]
· Clause 27.6 of the Agreement provides that the relevant employer and the majority of employees in an establishment may agree to substitute another day for a public holiday. This appears to be inconsistent with s 115(3) of the Act.[2]

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) I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s 54 of the Act, will operate from 19 August 2022. The nominal expiry date of the Agreement is 1 June 2025.

DEPUTY PRESIDENT

[1] Bienias v Iplex Pipelines Australia Pty Limited [2017] FWCFB 38 at [58]

[2] See also, 4 yearly review of modern awards—Plain language re-drafting [2019] FWCFB 5145

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of North Adelaide Service Partnership, the applicant sought approval for the Romeo’s Retail Group Enterprise Agreement 2022, which was submitted for consideration by the Fair Work Commission. The agreement in question involved several entities, including Bellagon Investments Pty Ltd, Bellagon Pty Ltd, DA Romeo Pty Ltd, and J Romeo Pty Ltd, all operating under the trade name Romeo’s. The application before the Commission was to determine whether the agreement met the requirements of the Fair Work Act 2009.

The legal issues central to this case revolved around whether the agreement complied with the statutory criteria for enterprise agreements, including provisions for minimum entitlements, pay rates, and dispute resolution mechanisms. The Commission was required to assess whether the agreement provided fair and reasonable terms and conditions for employees and whether it had been genuinely negotiated between the employer and the relevant employee representatives. Additionally, the Court had to consider whether the agreement met the procedural requirements for submission and approval.

In reaching its decision, the Fair Work Commission examined the contents of the agreement in detail, considering both the substantive terms and the procedural fairness of the negotiation process. The Commission found that the agreement provided fair and reasonable terms for the employees and was genuinely negotiated. The Commission was satisfied with the procedural fairness, as the agreement had been submitted in accordance with the requirements of the Fair Work Act. Consequently, the Commission approved the Romeo’s Retail Group Enterprise Agreement 2022, finding it to be compliant with the necessary statutory requirements.

The final orders of the Commission were that the Romeo’s Retail Group Enterprise Agreement 2022 be approved and registered, effective from the date of the Commission's decision. The agreement was to apply to the employees covered by the agreement and would set the terms and conditions of employment for those employees until such time as a new agreement was negotiated and approved.

North Adelaide Service Partnership (Bellagon Investments Pty Ltd & Bellagon Pty Ltd & DA Romeo Pty Ltd as trustee for DA Romeo Holding Trust & J Romeo Pty Ltd as trustee for J Romeo Holding Trust) T/A Romeo’s...

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

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Legal Principle Established