Officeworks Limited

[2019] FWCA 6900

[2019] FWCA 6900

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Officeworks Limited
(AG2019/2571)

OFFICEWORKS STORE OPERATIONS AGREEMENT 2019

Retail industry
DEPUTY PRESIDENT MANSINI	MELBOURNE, 11 OCTOBER 2019

Application for approval of the Officeworks Store Operations Agreement 2019.

[1] Officeworks Limited (Officeworks) has applied for approval of a single enterprise agreement known as the Officeworks Store Operations Agreement 2019 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] Each of the Australian Workers’ Union (AWU), the Retail and Fast Food Workers Union (RAFFWU) and the Shop Distributive and Allied Employees’ Association (SDA) are bargaining representatives of the employees covered by the Agreement.

[3] Since the application was made on 15 July 2019, 1 concerns were raised about whether the pre approval requirements were met and whether the employees and prospective employees to be covered by the Agreement are “better off overall” than if the relevant award applied.

[4] Further information was provided by the Applicant in response to these concerns.

[5] The AWU and the SDA supported approval of the Agreement at all times. During the course of the proceedings, RAFFWU pressed objections related to the form of certain proposed undertakings and the voting cohort.

[6] A hearing took place on 3 October 2019.

Genuine agreement

The voting cohort

[7] It was not contentious that the voting cohort of employees covered by the Agreement at the time of the vote included a substantial number of casual employees.

[8] Officeworks gave evidence that:

a) 378 (of 2,282) casual employees did not work a shift during the access or voting periods and were requested to vote to approve the Agreement (the First Group). However, even if this group cast a vote (which is not known) those votes were immaterial to the outcome.

b) All employees who worked a shift during the access or voting periods and would be covered by the Agreement were requested to vote to approve the Agreement (the Second Group). This group included 9 casual employees who commenced employment during the access or vote periods (New Starters).

c) Employees were requested to vote, relevantly (and not limited to), in the following ways:

• in writing: including internal communications posted on the store intranet; FAQs, posters and booklets displayed in stores, all of which were accessible internally and externally prior to and throughout the access and vote periods; and
• in person: including daily team talks held in store within 30 minutes of commencing shifts, held prior to and throughout the access and vote periods; and additional “access period team talks”, held throughout the access period.

Voting access was facilitated in each store, as well as via remote methods, with a range of “help” facilities made available to assist in the event of a technical difficulty with accessing or casting the vote.

[9] Regarding the First Group, I am satisfied on the evidence and submissions of Officeworks (supported by the AWU and the SDA and not opposed by RAFFWU), that the impact of Officeworks requesting a broader than strictly eligible pool was immaterial and does not prevent approval by the Commission. 2

[10] Regarding the Second Group, being plainly eligible, RAFFWU challenged whether Officeworks requested the New Starters to vote within the meaning of ss.181 and 182. It argued that, in the absence of evidence about the “experience” of the New Starters or any “special steps” taken to make a request of New Starters who may have commenced work during the voting period, the Commission may not be satisfied that Officeworks employees had “genuinely agreed” within the meaning of s.188. Officeworks, supported by the AWU and the SDA, invited the Commission to reject RAFFWU’s contentions which were not supported by evidence.

[11] The Act provides a process whereby:

a) An employer who will be covered by the agreement may request its employees, employed at the time who will be covered by the agreement, to approve the agreement by voting for it (s.181(1)); and
b) The agreement is only made, and can only be approved by the Commission, if a majority of the employees who would be covered by it have been asked to approve the agreement under s.181(1) and approved it by casting a valid vote (s.182(1)),

being relevant to the Commission’s assessment of “genuine agreement” for the purposes of s.188(1)(a) and perhaps also (c).

[12] The Act contains other requirements, for example to take all reasonable steps to notify of the vote, but does not specify what steps an employer must take, or how an employer may make, a request of its employees to approve an enterprise agreement by vote under s.181(1). In any event, whether a request is made is a matter of fact to be established on the evidence. The subjective experience of the employees is not the relevant question.

[13] On the evidence before the Commission I consider that Officeworks took the necessary steps, in the context of its business and operation of its workplaces, to request the relevant employees including the New Starters to vote to approve the Agreement. There is simply no basis, on the materials before the Commission, to conclude otherwise.

The NERR

[14] On the further information provided by Officeworks, which was not opposed, I am satisfied that the form and distribution of the Notice of Employee Representational Rights (NERR) strictly complied with ss.173(1), 174(1A) and 181(2).

[15] For the above reasons and having considered all of the evidence before the Commission, I am satisfied that the Agreement was “genuinely agreed” within the meaning of ss.186(2)(a) and 188.

Better off overall

[16] Concerns were raised by the Commission as to whether the Agreement passes the “better off overall test”.

[17] Further information was provided in relation to those concerns, including written undertakings to address some concerns in accordance with s.190 of the Act (attached at Annexure A) (Undertakings). The Undertakings include an amendment made with regard to the views of RAFFWU, who did not otherwise oppose the Undertakings. The AWU and the SDA did not oppose the Undertakings.

[18] On an overall assessment of the identified benefits and detriments of the Agreement, and having regard to the Undertakings, I consider that the employees and prospective employees to be covered are “better off overall” under the Agreement than if the relevant reference instrument applied.

[19] 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. Pursuant to s.201(3) of the Act, the Undertakings are taken to be terms of the Agreement.

[20] Noting the Undertakings, the more beneficial entitlements of the National Employment Standards in the Act (NES) will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved

[21] On the basis of the material contained in the application, further information, evidence and the Undertakings, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[22] The AWU and the SDA, being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they respectively want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers those organisations.

[23] The Agreement is approved on 11 October 2019 and will commence to operate on 4 November 2019, being the later date specified in accordance with s.186(5)(b). It has a nominal expiry date of 11 October 2023.

DEPUTY PRESIDENT

Annexure A

 1 Being the next business day for filing after the day specified at s.185(3) of the Act and acceptable pursuant to s.36(2) of the Acts Interpretation Act 1901 (Cth), as in force on 25 June 2009 and pursuant to s.40A of the Act.

 2   See National Tertiary Education Industry Union v Swinburne University of Technology [2015] FCAFC 98.

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