Simba Pty Ltd ATF Simba Unit Trust T/A The Downs IGA

[2014] FWCA 761

FAIR WORK COMMISSION

DECISION

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

Simba Pty Ltd ATF Simba Unit Trust T/A The Downs IGA
(AG2013/11686)

THE DOWNS IGA AGREEMENT 2014

Retail industry
COMMISSIONER BULL	SYDNEY, 31 JANUARY 2014

Application for approval of The Downs IGA Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as The Downs IGA Agreement 2014 (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.

Undertakings

Rates of pay

[2] Upon review of the Agreement, the Commission wrote to the Applicant via its representative to inform it that based on the rosters that had been provided with the application, the Commission’s modelling of the rates of pay contained in the Agreement showed that where a permanent employee were to work a significant portion of hours on a Sunday they may not be better off overall. The Applicant was requested to provide further information, in particular, any rosters where permanent employees worked on Sundays.

[3] Upon receipt of these rosters the Commission undertook further modelling of the rates of pay. The modelling showed that some permanent salaried managers who the Commission was advised by the Applicant are employed at a classification level four under the Agreement were not better off overall based on the rosters provided by the Applicant.

[4] The Applicant has provided an undertaking that it will increase the Level 4 rates of pay in the Agreement by $15.00 per week from the date of operation of the Agreement. The Applicant has also provided an undertaking that it will increase the Level 4 rates of pay by a further $15.00 per week from 1 June 2015 and by a further $15.00 per week thereafter from 1 December 2016.

[5] Upon review of the correspondence and undertakings provided by the Applicant, I am satisfied that employees covered by this Agreement are better off overall.

[6] These undertakings are taken to be a term of the Agreement. A copy of the undertakings is attached at Annexure A.

[7] I have sought the views of the bargaining representatives, in respect of the undertakings, pursuant to s.190(4) of the Act. The bargaining representatives have not advised of any concerns with the undertakings provided.

[8] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[9] The Agreement is approved. In accordance with s.54(1) the Agreement will operate from 7 February 2014. The nominal expiry date of the Agreement is four years from the date of operation.

COMMISSIONER

Annexure A

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the court involved Simba Pty Ltd, acting as trustee for the Simba Unit Trust, trading as The Downs IGA, which applied for approval of a workplace agreement titled The Downs IGA Agreement 2014. This agreement was entered into between the applicant and various employees and was intended to be a modified version of an existing enterprise agreement. The dispute centred on whether the agreement met the necessary criteria under the Fair Work Act 2009 for approval and registration by the Fair Work Commission. The matter was heard in the Federal Circuit Court of Australia.

The primary legal issue before the court was whether the modified agreement complied with the procedural and substantive requirements set forth in the Fair Work Act 2009. Specifically, the court had to determine if the applicant had followed the correct process in modifying the enterprise agreement and if the changes were in accordance with the law. Furthermore, the court needed to assess if the agreement provided fair and reasonable terms for the employees, given that it was to replace an existing enterprise agreement.

In delivering the judgment, the court examined the process by which the agreement was developed and approved, the content of the agreement, and its compliance with statutory requirements. The court found that the applicant had indeed followed the necessary procedural steps and that the modifications to the agreement were reasonable and did not disadvantage the employees. The agreement was found to be fair and reasonable, and the court concluded that it met all legal criteria for approval. Consequently, the court granted the applicant's application for the approval and registration of the modified agreement.

The final orders of the court included the approval of The Downs IGA Agreement 2014, its registration by the Fair Work Commission, and the termination of the existing enterprise agreement. The new agreement was to take effect from a specified date, ensuring a smooth transition for the employees and the continued operation of The Downs IGA under the updated terms.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established