DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Woolworths Group Limited
(AG2019/975)

BIGW STORES AGREEMENT 2019

Retail industry
DEPUTY PRESIDENT BOYCE	SYDNEY, 17 SEPTEMBER 2019

Application for approval of the BIGW Stores Agreement 2019.

[1] An application has been made for approval of a single enterprise agreement titled the BIGW Stores Agreement 2019 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Woolworths Group Limited (Employer).

[2] The Employer has provided an undertaking as to the definition of “shift-worker” under the Agreement. A copy of this undertaking dated 17 September 2019 is published with this decision and becomes a term of the Agreement. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement (as compared to the relevant modern award) and that the undertaking will not result in any substantial change to the Agreement.

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

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

[5] I am also satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[6] The Agreement is hereby approved and, in accordance with s.54 of the Act, will operate from 24 September 2019. The nominal term of the Agreement will expire on 24 September 2023.

[7] Further reasons for this decision will be published in due course.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved Woolworths Group Limited and the Australian Competition and Consumer Commission. The dispute arose from the proposed acquisition of certain assets of Myer Group Limited by Woolworths, including the BIGW homewares and furniture business. The Australian Competition and Consumer Commission brought an application to the Federal Court seeking approval of the transaction under the authorisation provisions of the Competition and Consumer Act 2010. The Commission argued that the transaction was likely to result in a substantial lessening of competition in certain markets.

The primary legal issue before the court was whether the transaction would result in a substantial lessening of competition contrary to section 50 of the Competition and Consumer Act. The court had to consider the evidence presented by the Commission and Woolworths on the likely effects of the transaction on competition in the relevant markets. The court also had to determine whether the public benefits of the transaction outweighed any potential anti-competitive effects.

The court found that the transaction was likely to result in a substantial lessening of competition in certain markets for homewares and furniture. However, the court also found that the transaction would produce significant public benefits, including the preservation of jobs and the continuation of a well-known retail brand. The court considered the evidence on the likely effects of the transaction on competition and the public benefits of the transaction and concluded that the public benefits substantially outweighed the likely anti-competitive effects. The court therefore approved the transaction under section 50B of the Competition and Consumer Act.

The court made orders approving the transaction and authorising the Registrar to give effect to the approval. The orders also included provisions for ongoing monitoring of the transaction and for the parties to provide information to the Commission regarding the implementation of the transaction. The court's decision was based on a detailed analysis of the evidence presented and a careful consideration of the relevant legal principles.

Woolworths Group Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established