Readings Pty Ltd
[2022] FWCA 3492
•10 OCTOBER 2022
| [2022] FWCA 3492 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Readings Pty Ltd
(AG2022/4074)
Readings Enterprise Agreement 2022
| Retail industry | |
| DEPUTY PRESIDENT COLMAN | MELBOURNE, 10 OCTOBER 2022 |
Application for approval of the Readings Enterprise Agreement 2022
Readings Pty Ltd (Readings) has made an application for approval of an enterprise agreement known as the Readings Enterprise Agreement 2022 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.
The Retail and Fast Food Workers Union Incorporated (RAFFWU) raised an objection to the approval of the Agreement on the basis that the Agreement may not have been made by a majority of employees who cast a valid vote (see ss 182(1) and 188(1)(b)). The concern related to the eligibility of casual employees to vote on the proposed agreement, because at least one casual who voted was not employed (that is, not engaged to work – casuals are generally not employed between engagements) during the access period for the Agreement (see Appeal by Kmart Australia Limited [2019] FWCFB 7599 (Kmart) at [31]-[36], and CFMMEU v Noorton Pty Ltd[2018] FWCFB 7224 (Noorton) at [32] and [33]). Of 119 votes, 61 were cast in favour of approving the Agreement. The application was listed for mention on 7 October 2022, during which Readings provided further details of the voting group. On 10 October 2022 RAFFWU advised the Commission that it withdrew its objection to the approval of the Agreement.
I am satisfied that the Agreement was made in accordance with s 182(1). Although it transpired that three voting casuals were not engaged to work during the access period and were not therefore employees ‘employed at the time who will be covered by the agreement’ (see ss 180(2) and 181(1) and Noorton), this did not affect the outcome of the vote (see Kmart at [43]). This is so because one of the three casuals is known to have voted ‘no’. Even if both of the other casuals voted to approve the Agreement, such that the ‘yes’ vote should be reduced by two, the Agreement was still approved by a majority of employees who cast a valid vote.
On the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of ss 186, 187 and 188 as are relevant to this application for approval has 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.
The Agreement was approved on 10 October 2022. The nominal expiry date of the Agreement is 10 October 2025.
DEPUTY PRESIDENT
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