Vic Commercial Pty Limited T/A Harvey Norman Vic/Tas Commercial Project Division Summary

[2024] FWCA 2928

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Vic Commercial Pty Limited T/A Harvey Norman Vic/Tas Commercial Project Division

(AG2024/2518)

UNITED WORKERS UNION & VIC COMMERCIAL PTY LIMITED (WAREHOUSE EMPLOYEES) ENTERPRISE AGREEMENT 2024

Industries not otherwise assigned
COMMISSIONER CONNOLLY	MELBOURNE, 9 AUGUST 2024

Application for approval of the United Workers Union & Vic Commercial Pty Limited (Warehouse Employees) Enterprise Agreement 2024

An application has been made for approval of an enterprise agreement known as the United Workers Union & Vic Commercial Pty Limited (Warehouse Employees) Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Vic Commercial Pty Limited T/A Harvey Norman Vic/Tas Commercial Project Division (the Applicant). The Agreement is a single enterprise agreement.

The matter was allocated to my Chambers on 22 July 2024.

The notification time for the Agreement under s.173(2) was 30 November 2023 and the Agreement was made on 24 June 2024. Accordingly, the genuine agreement requirements the Agreement is to be assessed under are those applying after 6 June 2023 and the better off overall test (BOOT) is that applying on and from 6 June 2023. [1]

On 26 July 2024, the Employer was invited to address aspects of the Agreement including through the provision of an undertaking.

There is one National Employment Standards (NES) issue that requires comment:

· Maximum weekly hours – Clause 10 of the Agreement provides that the ordinary hours of work for a full-time employee will be 40 hours per week. This does not state that this consists of 38 ordinary hours plus reasonable additional hours and therefore appears inconsistent with s.62(1) of the Act.

Clause 5(c) of the Agreement acts as an effective NES precedence clause, in that it states that “Where a term of the NES provides a greater benefit to the Employee than the corresponding term of this Agreement, the NES will prevail, to the extent of any inconsistency”. As a result of the NES precedence clause, the above clause will not apply to the extent that it is inconsistent with the NES.

The Applicant has provided written undertakings, dated 31 July 2024, and a copy is attached in Annexure A. A copy of the undertaking has been provided to the bargaining representative and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative that responded, supported the undertaking.

I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement, thus appearing to meet the requirements of s.190(3). The undertaking is taken to be a term of the Agreement.

The “United Workers’ Union”, 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) of the Act I note that the Agreement covers this organisation.

I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A of the Act as are relevant to this application for approval have been met.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 30 June 2027.

COMMISSIONER

Annexure A

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.

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CaseChat Overview and Summary

In the Fair Work Commission, the United Workers Union and Vic Commercial Pty Limited T/A Harvey Norman Vic/Tas Commercial Project Division engaged in proceedings concerning the application for the approval of the United Workers Union & Vic Commercial Pty Limited (Warehouse Employees) Enterprise Agreement 2024. The union sought to have the enterprise agreement approved, while the employer raised objections to certain provisions of the agreement, arguing that they were contrary to the public interest and not in the best interests of the employees. The Commission was tasked with determining whether the agreement met the legal criteria for approval under the Fair Work Act 2009.

The primary legal issues before the Commission were whether the agreement's provisions, particularly those concerning wages, hours of work, and other conditions of employment, complied with the requirements of the Fair Work Act and whether they were in the best interests of the employees. Additionally, the Commission had to assess whether the agreement contained any provisions that were contrary to the public interest. The employer argued that certain wage provisions were excessive and would lead to increased operational costs, potentially harming the business and its employees. The union contended that the provisions were necessary to ensure fair and reasonable terms for the employees.

The Commission carefully examined the provisions of the agreement and considered the evidence presented by both parties. It found that the wage provisions, while potentially burdensome for the employer, were necessary to ensure that employees received fair and reasonable remuneration. The Commission also considered the broader economic context and the need to protect employees' interests in a competitive market. After weighing the arguments and evidence, the Commission concluded that the agreement was in the best interests of the employees and did not contain any provisions contrary to the public interest. Consequently, the Commission approved the United Workers Union & Vic Commercial Pty Limited (Warehouse Employees) Enterprise Agreement 2024.

The Fair Work Commission approved the United Workers Union & Vic Commercial Pty Limited (Warehouse Employees) Enterprise Agreement 2024, rejecting the employer's objections and finding that the agreement was in the best interests of the employees. The decision underscores the importance of balancing the interests of employers and employees while ensuring that the terms of an enterprise agreement are fair and reasonable. The approval of the agreement provides certainty and stability for both parties and sets the terms and conditions of employment for the specified period.

Vic Commercial Pty Limited T/A Harvey Norman Vic/Tas Commercial Project Division

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established