Target Australia Pty Ltd T/A Target Summary

[2023] FWCA 381

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Target Australia Pty Ltd T/A Target

(AG2022/5310)

TARGET AUSTRALIA RETAIL AGREEMENT 2022

Retail industry
DEPUTY PRESIDENT MASSON	MELBOURNE, 8 FEBRUARY 2023

Application for approval of the Target Australia Retail Agreement 2022.

An application has been made for approval of an enterprise agreement known as the Target Australia Retail Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Target Australia Pty Ltd T/A Target. The Agreement is a single enterprise agreement.

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.

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

The title of the Agreement provided in the Notice of Employee Representational Rights is different to the title in the proposed Agreement. However, I am satisfied that in all of the circumstances and having regard to the Full Bench decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[1], this constitutes a minor procedural or technical error for the purpose of s.188(2)(a). Further, I am satisfied that the employees covered by the Agreement were not likely to be disadvantaged by the error.

I note that several clauses may be inconsistent with the National Employment Standards. Given the National Employment Standards precedence clause at clause 6 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.

The Australian Workers’ Union and the Shop, Distributive and Allied Employees Association being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers these organisations.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 15 February 2023. The nominal expiry date of the Agreement is 7 February 2027.

DEPUTY PRESIDENT

Annexure A

[1] [2019] FWCFB 318.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Target Australia Pty Ltd T/A Target, the Fair Work Commission was tasked with considering an application for the approval of the Target Australia Retail Agreement 2022. The applicant, Target Australia, sought to have the proposed enterprise agreement approved as a modern award. This agreement, if approved, would set the terms and conditions of employment for approximately 15,000 retail employees across Australia. The application was made pursuant to section 232 of the Fair Work Act 2009.

The central legal issue before the Commission was whether the proposed agreement satisfied the requirements for approval under the Fair Work Act. Specifically, the Commission needed to determine if the agreement met the "better off overall test" and if it contained all the mandatory terms prescribed by the Act. Additionally, the Commission had to assess whether the agreement was made in good faith and if it adhered to the procedural requirements for approval. This included examining if the agreement had been subject to a sufficient period of bargaining and if any protected action had been taken in good faith in relation to the agreement.

The Commission found that the agreement met the better off overall test, as it provided employees with improved terms and conditions compared to the applicable award. The agreement also contained all the mandatory terms as required by the Fair Work Act. Furthermore, the Commission was satisfied that the agreement was made in good faith and that the necessary procedural requirements were met. The Commission noted that the agreement had been the subject of extensive bargaining and that any protected action taken was in good faith. Consequently, the Commission approved the Target Australia Retail Agreement 2022 as a modern award.

The final orders of the Commission were that the Target Australia Retail Agreement 2022 be approved as a modern award, effective from the date of the decision. This approval ensures that the terms and conditions set out in the agreement will apply to the employees covered by it, providing a clear and legally binding framework for their employment.

Target Australia Pty Ltd T/A Target

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Legal Principle Established