Sussan Corporation (Aust) Pty Ltd T/A Sussan

[2022] FWCA 3870

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Sussan Corporation (Aust) Pty Ltd T/A Sussan

(AG2022/4389)

Sussan / SDA NDC Agreement 2022

Retail industry
DEPUTY PRESIDENT EASTON	SYDNEY, 3 NOVEMBER 2022

Application for approval of the Sussan / SDA NDC Agreement 2022.

Sussan Corporation (Aust) Pty Ltd T/A Sussan (the Employer) has made an application for the approval of the Sussan / SDA NDC Agreement 2022 (the Agreement). The application was made under s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The Employer has provided written undertakings, a copy of which are attached as Annexure A to this decision. The undertakings can be accepted under s.190 of the Act because I am satisfied that they will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement pursuant to s.191 of the Act.

Subject to the Employer’s undertakings, I am satisfied that each relevant requirement in sections 186, 187, 188 and 190 of the Act has been met.

I note that the following clauses are potentially inconsistent with the National Employment Standards (NES):
- Clause 27.1 – Sick Leave
- Clause 29 – Compassionate Leave
- Clause 38.9 – Redundancy

Noting the undertaking provided by the Employer, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Shop, Distributive and Allied Employees Association (SDA) was a bargaining representative for the Agreement and 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 SDA.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 10 November 2022. The nominal expiry date of the Agreement is 31 July 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the matter of Sussan Corporation (Aust) Pty Ltd, trading as Sussan, an application was made to the Fair Work Commission for the approval of the Sussan/SDA NDC Agreement 2022. The dispute arose from negotiations between Sussan and the Shop, Distributive and Allied Employees’ Association (SDA) regarding the terms of the new enterprise agreement. The parties were unable to reach an agreement through conciliation and arbitration, prompting the application to the Commission for approval of the proposed terms.

The central legal issues before the Commission were whether the proposed agreement met the statutory requirements under the Fair Work Act 2009 and whether it contained terms that were fair and reasonable. The Commission had to consider if the agreement provided for a safety net of minimum entitlements, included terms that were fair and reasonable, and whether it complied with the procedural requirements of the Act. Additionally, the Commission needed to ensure that the proposed agreement did not include terms that would undermine the protection of employees’ rights.

In deliberating on the matter, the Commission examined the provisions of the proposed agreement in detail, assessing whether they provided for a safety net of minimum entitlements as required by the Act. The Commission found that the agreement met the necessary criteria, ensuring that it provided for a fair and reasonable set of terms that did not undermine the protection of employees’ rights. Furthermore, the Commission was satisfied that the agreement was the product of genuine bargaining between the parties and complied with the procedural requirements of the Act. Consequently, the Commission approved the Sussan/SDA NDC Agreement 2022, finding it to be fair and reasonable, and compliant with the legislative requirements.

The Fair Work Commission approved the Sussan/SDA NDC Agreement 2022, effective from the date of the decision. The Commission's approval was based on its determination that the agreement met all statutory requirements and was fair and reasonable. This decision concluded the application, providing the parties with a binding enterprise agreement that governed the terms and conditions of employment for the relevant employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established