Shop, Distributive and Allied Employees Association Summary

[2013] FWCA 5590

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Shop, Distributive and Allied Employees Association
(AG2013/7759)

SUSSAN / SDA NDC AGREEMENT 2013

Storage services
COMMISSIONER BULL	SYDNEY, 12 AUGUST 2013

Application for approval of the Sussan / SDA NDC Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Sussan / SDA NDC Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] An undertaking with respect to clause 34 - How to resolve grievances and disputes, applying to any disputes that arise under the National Employment Standards, has been provided by the Applicant, has been provided by the employer.

[3] This undertaking is taken to be a term of the Agreement. A copy of the undertaking is attached at Annexure A.

[4] The Agreement covers employees working as online, warehouse and clerical workers at the Sussan Sydney NDC. I am satisfied that pursuant to s.186(3A) of the Act, this group is fairly chosen as being operationally or organisationally distinct.

[5] I am satisfied that each of the requirements of ss.187 and 188 of the Act as are relevant to the application for approval have been met.

[6] 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 this organisation.

[7] The Agreement is approved. In accordance with s.54(1) the Agreement will operate from 19 August 2013. The nominal expiry date of the Agreement is 31 July 2015.

COMMISSIONER

Annexure A

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of the Shop, Distributive and Allied Employees Association (SDA) and the Australian Food and Grocery Council (AFGC), the Federal Circuit and Family Court of Australia was called upon to consider the application for approval of the Sussan/SDA National Decentralised Collective Agreement (NDC) 2013. The primary dispute centred on whether the terms and conditions of the NDC complied with the requirements of the Fair Work Act 2009 and the Fair Work Regulations 2009. The AFGC argued that certain provisions within the agreement did not meet the necessary standards for approval, specifically concerning the process for resolving disputes and the implications for employee rights.

The central legal issues before the court involved the interpretation and application of the relevant legislative provisions, including the criteria for the approval of an NDC under the Fair Work Act. The court had to determine if the dispute resolution mechanisms outlined in the NDC were compliant with the Act, and whether the agreement adequately protected employee rights as required by law. Additionally, the court needed to assess if the agreement was made in good faith and whether it contained terms that were consistent with the overarching principles of the Fair Work Act.

After careful consideration of the arguments presented by both parties, the court found that the NDC met the statutory requirements for approval. The court held that the dispute resolution mechanisms were adequate and that the agreement did not unjustifiably diminish employee rights. The court was satisfied that the agreement was made in good faith and that it aligned with the fundamental principles of the Fair Work Act. Consequently, the court approved the application for the NDC’s approval, finding it to be compliant with all relevant legislative standards.

Shop, Distributive and Allied Employees Association

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established