Spotlight Pty Ltd T/A Spotlight

[2024] FWCA 4134

[2024] FWCA 4134

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Spotlight Pty Ltd T/A Spotlight

(AG2024/3959)

SPOTLIGHT DISTRIBUTION CENTRE ENTERPRISE AGREEMENT 2024

Retail industry
COMMISSIONER YILMAZ	MELBOURNE, 26 NOVEMBER 2024

Application for approval of the Spotlight Distribution Centre Enterprise Agreement 2024

1. An application has been made for approval of an enterprise agreement known as the Spotlight Distribution Centre Enterprise Agreement 2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Spotlight Pty Ltd T/A Spotlight. The Agreement is a single enterprise agreement.

1. 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.

1. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188, 193 and 193A as are relevant to this application for approval 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.

1. I note that the Notice of Employee Representational Rights (NERR) was not provided in the correct form. An older version of the NERR was provided and it contained a different title for the Agreement to the one noted above.  However, I am satisfied that this constitutes a minor procedural or technical error, that the employees were not likely to have been disadvantaged by the error, and the error may be disregarded pursuant to s.188(5) of the Act. 

1. I observe that clauses 3.4.4, 3.9.3(b) and 6.1.6(b) of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 7.10 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. I also observe that clause 3.9.5 of the Agreement is likely to be inconsistent with the National Employment Standards (NES). However, noting the undertakings referred to above, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. 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 the organisation.

1. The Agreement is approved and in accordance with s.54, will operate from 9 December 2024. The nominal expiry date of the Agreement is 31 August 2027.

COMMISSIONER

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Annexure A