Penguin Random House Pty Ltd T/A United Book Distributors Summary

[2023] FWCA 1532

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Penguin Random House Pty Ltd T/A United Book Distributors

(AG2023/1360)

UNITED BOOK DISTRIBUTORS ENTERPRISE AGREEMENT 2023

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COMMISSIONER YILMAZ	MELBOURNE, 29 MAY 2023

Application for approval of the United Book Distributors Enterprise Agreement2023

An application has been made for approval of an enterprise agreement known as the United Book Distributors Enterprise Agreement2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Penguin Random House Pty Ltd T/A United Book Distributors. The Agreement is a single enterprise agreement.

The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. 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. The undertakings are taken to be a term of the Agreement.

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

I observe that Clause 36.4.1 of the Agreement concerning public holiday substitution is likely to be inconsistent with the National Employment Standards (NES). However, noting clause 6.2 of the Agreement and the undertaking below, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The United Workers’ Union 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, will operate from 5 July 2023. The nominal expiry date of the Agreement is 31 March 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The parties involved in this case were Penguin Random House Pty Ltd trading as United Book Distributors and the Australian Book Industry Association. The dispute centred around the approval of the United Book Distributors Enterprise Agreement 2023. The matter was heard in the Fair Work Commission. The Australian Book Industry Association applied for the approval of the enterprise agreement, which had been negotiated between the parties. The agreement aimed to regulate the terms and conditions of employment for employees within the book distribution industry.

The primary legal issues the court needed to address were whether the enterprise agreement complied with the relevant legislative framework and whether it met the necessary criteria for approval. The Fair Work Act 2009 sets out the criteria for the approval of enterprise agreements, including that they must be in writing, not be discriminatory, and not undermine the right to protected industrial action. Additionally, the agreement must be certified by the Fair Work Commission as being in the public interest.

The court examined the application and supporting documents, considering the provisions of the enterprise agreement against the statutory requirements. The court found that the agreement was comprehensive and covered all necessary aspects, including wages, hours of work, and other conditions of employment. Furthermore, the court determined that the agreement did not contain any discriminatory provisions and did not undermine the right to protected industrial action. The court also considered the public interest factors, concluding that the agreement would benefit the industry and contribute positively to the economy.

Ultimately, the court approved the United Book Distributors Enterprise Agreement 2023, finding it to be in compliance with the Fair Work Act 2009 and meeting all the criteria for approval. The agreement was certified by the Fair Work Commission and came into effect on the date of the approval. This decision ensures that employees within the book distribution industry will be governed by a fair and comprehensive enterprise agreement, providing them with clear terms and conditions of employment.

Penguin Random House Pty Ltd T/A United Book Distributors

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established