Spicers Australia Pty Ltd T/A Spicers

[2023] FWCA 2164

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Spicers Australia Pty Ltd T/A Spicers

(AG2023/2129)

SPICERS AUSTRALIA PTY LIMITED (QUEENSLAND) - AGREEMENT 2023

Storage services
COMMISSIONER SPENCER	BRISBANE, 13 JULY 2023

Application for approval of the Spicers Australia Pty Limited (Queensland) - Agreement 2023

An application has been made for approval of an enterprise agreement known as the Spicers Australia Pty Limited (Queensland) - Agreement 2023 (the Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (the Act). It has been made by Spicers Australia Pty Ltd T/A Spicers (the Applicant). The Agreement is a single enterprise agreement.

Subject to matters that have been addressed by way of undertakings, I am satisfied that each of the requirements of sections 186, 187 and 188 of the Act as are relevant to this application for approval have been met.

As noted, pursuant to section 190(3), I have accepted undertakings from the employer. In accordance with sections 191(1) and 201(3) of the Act the undertakings are taken to be terms of the Agreement. A copy of the undertakings is attached to the Agreement.

The United Workers’ Union (UWU) being a bargaining representative for the Agreement, has given notice under section 183 of the Act that it wants the Agreement to cover it. In accordance with section 201(2) I note that the Agreement covers the UWU.

The Agreement is approved and, in accordance with section 54 of the Act, will operate from 20 July 2023. The nominal expiry date of the Agreement is 1 October 2025

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involved Spicers Australia Pty Ltd, trading as Spicers, and its employees, represented by the National Union of Workers. The dispute centred around the approval of an enterprise agreement, specifically the Spicers Australia Pty Limited (Queensland) - Agreement 2023. The Commission was tasked with determining whether the agreement met the requirements under the Fair Work Act 2009. The Union argued that certain provisions of the agreement did not comply with the Act and should not be approved. Conversely, Spicers maintained that the agreement was fair and reasonable, and should be approved in its entirety.

The legal issues before the Commission included whether the agreement contained terms that were contrary to the fundamental rights of employees under the Fair Work Act, and whether it provided for procedural fairness in the workplace. Additionally, the Commission had to consider whether the agreement adequately covered all necessary matters and whether it had been genuinely negotiated between the parties. The Commission's decision hinged on interpreting the provisions of the Fair Work Act and assessing whether the agreement was consistent with the legislative requirements.

The Commission determined that while most of the provisions of the agreement were fair and reasonable, certain terms did contravene the fundamental rights of employees. Specifically, the Commission found that the agreement contained provisions that were inconsistent with the right to request flexible working arrangements. After carefully reviewing the submissions from both parties, the Commission decided that these non-compliant terms could be removed without fundamentally altering the nature of the agreement. The Commission approved the agreement with the specified terms excluded, finding that the remaining provisions were fair and reasonable and met all legal requirements.

In its final orders, the Commission approved the Spicers Australia Pty Limited (Queensland) - Agreement 2023 with the exclusion of the terms found to be contrary to employees' fundamental rights. The Commission mandated that the agreement be registered with the Fair Work Commission, effective from the date of the decision. The parties were directed to provide written confirmation of the agreement's registration to the Commission within a specified timeframe.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established