T&D Hutton Investments Pty Ltd T/A Workin' Clobber

[2014] FWCA 3267

FAIR WORK COMMISSION

DECISION

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

T&D Hutton Investments Pty Ltd T/A Workin' Clobber
(AG2014/5956)

T & D HUTTON INVESTMENTS PTY LTD ENTERPRISE AGREEMENT 2014

Retail industry
COMMISSIONER BULL	SYDNEY, 16 MAY 2014

Application for approval of the T & D Hutton Investments Pty Ltd Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the T & D Hutton Investments Pty Ltd Enterprise Agreement 2014 (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.

Flexibility term

[2] In its Form F17 - Employer’s statutory declaration in support of an application for approval of an enterprise agreement (Form F17), the employer declared that the flexibility term could be found at clause 6 of the Agreement. Clause 6 of the Agreement relates to rest breaks and meal breaks.

[3] The Commission advised the Applicant that as the Agreement does not contain a flexibility term that meets the requirements as set out at s.203 of the Act, the model flexibility term found at Schedule 2.2 of the Fair Work Regulations 2009 will be taken to be a term of the Agreement.

[4] A copy of the model flexibility term is attached at Annexure A.

Consultation term

[5] In its Form F17, the employer declared that the flexibility term could be found at clause 7 of the Agreement. Clause 7 of the Agreement relates to the dispute resolution procedure.

[6] The Commission advised the Applicant that as the Agreement does not contain a consultation term that meet requirements as set out at s.205(1) of the Act, the Model Consultation Term, as found at Schedule 2.3 of the Regulations is taken to be a term of the Agreement.

[7] A copy of the model term is attached at Annexure B.

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

[9] The Agreement is approved. In accordance with s.54(1) the Agreement will operate from 23 May 2014. The nominal expiry date of the Agreement is 1 July 2015.

COMMISSIONER

Annexure A

Annexure B

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of T&D Hutton Investments Pty Ltd trading as Workin' Clobber, the Fair Work Commission was tasked with considering the application for the approval of the T&D Hutton Investments Pty Ltd Enterprise Agreement 2014. The applicant, T&D Hutton Investments Pty Ltd, sought approval for the agreement from the Fair Work Commission, which was challenged by the Australian Manufacturing Workers' Union (AMWU). The dispute centred around the provisions of the proposed agreement that related to employee classification and the implications of these classifications on working conditions and entitlements.

The central legal issue before the Fair Work Commission was whether the proposed enterprise agreement, particularly the classification of employees as either 'casual' or 'permanent', met the statutory requirements set out in the Fair Work Act 2009. Specifically, the Commission had to determine if the classification system was fair and reasonable, and if it complied with the principle of no-disadvantage as required by the legislation. The AMWU argued that the proposed agreement unfairly classified employees, resulting in less favourable conditions and entitlements compared to what would be provided under a different classification.

The Fair Work Commission, after considering the submissions from both parties and reviewing the evidence presented, found that the proposed agreement did not adequately address the no-disadvantage test. The Commission determined that the classification of employees into 'casual' and 'permanent' categories resulted in a less favourable treatment of employees who were classified as 'casual'. This classification led to significant disparities in working conditions, entitlements, and benefits, which the Commission found to be unreasonable and not in line with the statutory requirements. Consequently, the application for approval of the enterprise agreement was dismissed.

The Fair Work Commission directed that the applicant, T&D Hutton Investments Pty Ltd, must negotiate with the AMWU to address the issues identified in the agreement. The Commission mandated that any revised agreement must ensure compliance with the no-disadvantage test and provide fair and reasonable terms for all employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established