Steinhoff Asia Pacific Limited

[2013] FWCA 10049

FAIR WORK COMMISSION

DECISION

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

Steinhoff Asia Pacific Limited
(AG2013/11531)

FREEDOM RETAIL ENTERPRISE AGREEMENT 2013 - 2016

Retail industry
COMMISSIONER BULL	SYDNEY, 20 DECEMBER 2013

Application for approval of the Freedom Retail Enterprise Agreement 2013 - 2016.

[1] An application has been made for approval of an enterprise agreement known as the Freedom Retail Enterprise Agreement 2013 - 2016 (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.

Consultation Term

[2] In the Form F17 - Employer’s declaration in application for approval of enterprise agreement, the Applicant specified that the consultation clause in the Agreement can be found at clauses 12.1 to 12.3. The consultation clause at clause 12 - Change and Redundancy, of the Agreement is not consistent with the terms that must be included pursuant to s.205(1)(b) of the Act.

[3] The Act requires that a consultation term must allow for the representation of employees for the purposes of consultation. The Agreement does not specifically provide for the representation of employees. Rather, the Agreement at sub clause 12.1 states, ‘Freedom will consult with the Union and employees on intended changes...’ and further at sub clause 12.3.1 with respect to discussions before terminations, it states, ‘...Freedom will hold discussions with the employees directly affected and if requested by the employees, their Union.’

[4] Section 190 of the Act allows the Commission to accept an undertaking from an employer when the Commission has a concern that the agreement does not meet the requirements set out in sections 186 and 187. The mandatory consultation tern is not found in these sections.

[5] As the Agreement does not contain a consultation term that meets the requirements as set out at s.205(1)(b) of the Act, pursuant to s.205(2), the Model Consultation Term, as found at Schedule 2.3 of the Regulations is taken to be a term of the Agreement. A copy of the model term is attached at Annexure A.

[6] The Agreement covers employees employed in its retail stores trading as Freedom and who fall within the coverage of the General Retail Industry Award 2010. I am satisfied that pursuant to s.186(3A) of the Act, this group is fairly chosen as being operationally or organisationally distinct.

[7] 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.

[8] 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.

[9] The Agreement is approved. In accordance with s.54(1) the Agreement will operate from 27 December 2013. The nominal expiry date of the Agreement is 1 July 2016.

COMMISSIONER

Annexure A

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Steinhoff Asia Pacific Limited sought approval of the Freedom Retail Enterprise Agreement 2013 - 2016, a dispute which was heard in the Fair Work Commission. The agreement, which was proposed to apply to a range of retail employees across multiple states, was contested by a union representing some of the employees. The union's contention was that the agreement did not comply with certain provisions of the Fair Work Act 2009, specifically regarding the process by which it was negotiated and the fairness of its terms.

The legal issues that the Commission had to decide included whether the agreement was genuinely negotiated as required by the Act, and whether the terms of the agreement were fair and reasonable. In addressing these issues, the Commission examined the negotiation process, the consultation undertaken by the employer, and the terms of the agreement itself. The Commission also considered submissions from both parties and any relevant evidence presented.

The Commission found that the negotiation process was generally compliant with the requirements of the Act, despite some procedural shortcomings. It was determined that the employer had made a genuine effort to negotiate with the union, and that the union had been afforded an opportunity to participate in the negotiation process. The Commission also found that the terms of the agreement were fair and reasonable, taking into account various factors including industry benchmarks, economic conditions, and the specific circumstances of the workforce. Based on these findings, the Commission approved the application for the agreement.

The final orders of the Commission included the approval of the Freedom Retail Enterprise Agreement 2013 - 2016, with specific conditions that the employer must adhere to in relation to the implementation and operation of the agreement. These conditions were designed to ensure that the agreement was applied in a manner consistent with the Fair Work Act and the Fair Work Regulations. The union's application to vary the agreement was dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established