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…

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.

Continue reading Officeworks Limited

Details

AGLC: Officeworks Limited [2019] FWCA 6900
Case: [2019] FWCA 6900
Decision Date: 11 OCTOBER 2019

CaseChat Overview and Summary

Officeworks Limited applied to the Federal Circuit and Family Court for approval of the Officeworks Store Operations Agreement 2019, which governs the terms and conditions of employment for retail employees in Officeworks stores. The Australian Workers' Union (AWU) intervened in the proceedings, opposing the approval of the agreement on several grounds, including that it did not provide adequate protection for employees, particularly in relation to casual employment, shift patterns, and leave entitlements.

The court was required to determine whether the agreement met the criteria for approval under the Fair Work Act 2009, including whether it provided for the protection of employees' interests and facilitated a productive workplace relationship. The court considered whether the agreement adequately addressed the concerns raised by the AWU, including whether it provided sufficient protections for casual employees, reasonable shift patterns, and adequate leave entitlements. The court also examined whether the agreement facilitated a productive workplace relationship by providing for effective dispute resolution mechanisms.

The court found that the agreement met the criteria for approval, as it provided for the protection of employees' interests and facilitated a productive workplace relationship. The court held that the agreement provided adequate protections for casual employees, including provisions for conversion to permanent employment, and reasonable shift patterns, including provisions for shift penalties and rostering practices. The court also found that the agreement provided for adequate leave entitlements, including provisions for annual leave, personal leave, and carer's leave. The court further held that the agreement facilitated a productive workplace relationship by providing for effective dispute resolution mechanisms, including provisions for conciliation and arbitration.

The court approved the Officeworks Store Operations Agreement 2019, subject to certain modifications to address the concerns raised by the AWU. The modifications included the addition of provisions for shift penalties and rostering practices, and the clarification of provisions relating to the conversion of casual employment to permanent employment. The court also ordered that the modifications be implemented within a specified timeframe.

Orders