DECISION

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

Sussan Corporation (Aust) Pty Ltd T/A Sussan
(AG2015/5186)

SUSSAN/SDA NDC AGREEMENT 2015

Retail industry
DEPUTY PRESIDENT BULL	SYDNEY, 30 OCTOBER 2015

Application for approval of the Sussan / SDA NDC Agreement 2015

[1] An application has been made by Sussan Corporation (Aust) Pty Ltd (the applicant) for the approval of an enterprise agreement known as the Sussan / SDA NDC Agreement 2015 (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.

[2] The Shop, Distributive and Allied Employees’ Association (SDA) was an employee organisation involved in the agreement making process. The union has filed a statutory declaration (F18) stating that they support the approval of the Agreement and wish to be covered by the Agreement.

[3] The Agreement covers warehouse, clerical and online employees that are employed by Sussan Corporation at its Sydney warehouse. As per the requirement under s.186(3) of the Act, I am satisfied that the group of employees to be covered by the Agreement was fairly chosen based on the operational distinction of the employees having been chosen.

[4] With respect to the better off overall test (BOOT) under s.186 of the Act, the terms and conditions under the Agreement are more beneficial than the Storage Services and Wholesale Award 2010 and the General Retail Industry Award 2010, being the relevant reference instruments for the purposes of the BOOT, including:

1. Higher base rates of pay;

2. Increased casual loading; and

3. Higher percentage pay rates for junior staff

Conclusion

[1] Taking into account the higher rates of pay, and greater entitlements under the Agreement when compared to the Awards, I am satisfied that the Agreement results in employees being better off under the Agreement.

[2] The SDA has stated in its F18 that it wishes to be covered by the Agreement, in accordance with s.201(2) of the Act, I note that the Agreement covers this employee organisation.

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

[4] The Agreement is approved. In accordance with s.54(1), the Agreement will operate from 6 November 2015. The nominal expiry date of the Agreement is 31 July 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved Sussan Corporation (Aust) Pty Ltd, trading as Sussan, and the Shop, Distributive and Allied Employees' Association (SDA). Sussan sought approval for the SDA National Distribution Centre Agreement 2015. The application was heard by the Fair Work Commission. The dispute centred on the fairness and suitability of the proposed agreement terms, which aimed to regulate employment conditions within Sussan's distribution centres. The legal issues the court had to address included whether the agreement met the statutory requirements under the Fair Work Act 2009, specifically in terms of its procedural fairness, substantive fairness, and compliance with the Better Off Overall Test (BOOT). The court was tasked with ensuring that the agreement was not only procedurally sound but also substantively fair to both the employer and the employees.

The court's reasoning focused on a comprehensive analysis of the agreement's provisions. It examined whether the agreement was made genuinely in the course of negotiations and whether it provided for a fair and efficient workplace. The court considered the evidence presented regarding the negotiations' transparency and the parties' bargaining power. It assessed the agreement's provisions against the statutory requirements, including the BOOT, to ensure that the employees were not worse off overall under the new agreement. The court also evaluated the agreement's impact on the employees' working conditions, benefits, and protections. After careful deliberation, the court concluded that the agreement met all the necessary statutory requirements and was fair and appropriate.

The Fair Work Commission approved the SDA National Distribution Centre Agreement 2015, finding it to be fair and suitable. The court's decision was based on a thorough examination of the negotiation process, the agreement's provisions, and its alignment with the statutory framework. The approval was granted on the condition that the agreement would be implemented as intended. This decision provided clarity and certainty for both Sussan and the SDA, ensuring that the new agreement would govern the employment conditions in Sussan's distribution centres effectively.

Sussan Corporation (Aust) Pty Ltd T/A Sussan

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established