[2013] FWCFB 1705 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
SENIOR DEPUTY PRESIDENT ACTON |
MELBOURNE, 3 APRIL 2013 |
Appeal against decision [[2012] FWA 9549] of Commissioner Gooley at Melbourne on 13 November 2012 in matter number AG2012/9480 - substantial characters of enterprise - industries of employer - General Retail Award 2010 coverage - better off overall test - enterprise agreement approval refused.
Introduction
[1] G.J.E Pty Ltd (GJE) has appealed a decision 1 of Commissioner Gooley of 13 November 2012 in which the Commissioner declined to approve the All Equipment Hire Enterprise Agreement 2012 (the Agreement). The Agreement covers GJE and all its employees employed in the job classifications in the Agreement.
[2] In a statutory declaration filed with the application for approval of the Agreement, Mr Gordon Elley, Managing Director of GJE deposed to the effect that the Agreement covered four employees and that no modern award covered GJE in relation to any employees covered by the Agreement. The Commissioner subsequently sought submissions in regard to this declaration and then made a decision, 2 prior to the decision the subject of the appeal, that the General Retail Award 20103 (Retail Award) was relevant for the purposes of assessing whether the Agreement passed the better off overall test (BOOT).4 The Commissioner affirmed that decision in the decision the subject of this appeal and concluded that she was not satisfied the Agreement passed the BOOT. She went on to reject GJE’s application for approval of the Agreement as GJE had been provided with the opportunity to provide written undertakings to meet the Commissioner’s concern that the Agreement did not pass the BOOT, but had not done so.
Relevant law
[3] Section 186(1) of the Fair Work Act 2009 (Cth) (FW Act) provides that if an application for approval of an enterprise agreement is made, the Fair Work Commission (FWC) must approve the agreement if the requirements set out in ss.186(2) - (6) and 187 of the FW Act are met.
[4] Section 186(2) provides that:
“The FWC must be satisfied that:...
(d) the agreement passes the better off overall test.”
[5] Section 193 concerns the BOOT and relevantly provides that:
“193 Passing the better off overall test
When a non greenfields agreement passes the better off overall test
(1) An enterprise agreement that is not a greenfields agreement passes the better off overall test under this section if the FWC is satisfied, as at the test time, that each award covered employee, and each prospective award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee ...
Award covered employee
(4) An award covered employee for an enterprise agreement is an employee who:
(a) is covered by the agreement; and
(b) at the test time, is covered by a modern award (the relevant modern award) that:
(i) is in operation; and
(ii) covers the employee in relation to the work that he or she is to perform under the agreement; and
(iii) covers his or her employer.
Prospective award covered employee
(5) A prospective award covered employee for an enterprise agreement is a person who, if he or she were an employee at the test time of an employer covered by the agreement:
(a) would be covered by the agreement; and
(b) would be covered by a modern award (the relevant modern award) that:
(i) is in operation; and
(ii) would cover the person in relation to the work that he or she would perform under the agreement; and
(iii) covers the employer.
Test time
(6) The test time is the time the application for approval of the agreement by the FWC was made under section 185.
FWC may assume employee better off overall in certain circumstances
(7) For the purposes of determining whether an enterprise agreement passes the better off overall test, if a class of employees to which a particular employee belongs would be better off if the agreement applied to that class than if the relevant modern award applied to that class, the FWC is entitled to assume, in the absence of evidence to the contrary, that the employee would be better off overall if the agreement applied to the employee.”
Evidence before and submissions made to the Commissioner
[6] The evidence before the Commissioner in respect of GJE was that:
● it is a small business operating out of premises in South Australia;
● its business is essentially industrial, building and trades equipment hire to trade customers (trades customers, builders, tradespersons and other contractors) and to non-trade, presumably domestic, customers;
● it has a significant inventory of predominantly medium to heavy-duty construction related equipment;
● customers are required to hold special licences in order to operate some of the equipment hired out, such as elevated work platforms and scaffolds;
● between April and September 2012, 71.63% of the revenue of the business was payments from identified trade customers, and some 28.37% of the revenue was payments from non-trade customers and unidentified trade customers;
● the trade customers usually hire the equipment for their own business purposes;
● it has four employees employed in one of three classifications in the Agreement, namely Hire Serviceperson, Hire Controller and Hire Manager;
● all of the employees are required to carry out the full range of duties associated with the operation of GJE including -
- liaising with customers regarding potential hirings,
- demonstrating the operation of particular equipment,
- discussing with customers their needs and the types of equipment that may suit their purpose,
- completion of the hire application,
- general cleaning,
- basic administration, and
- basic equipment maintenance. 5
[7] There was also evidence before the Commissioner that the Australian and New Standard Industrial Classification system used by the Australian Bureau of Statistics separates the hire of goods and equipment from retail trade.
[8] GJE submitted to the Commissioner that it was not covered by any modern award, including the Manufacturing and Associated Industries and Occupations Award 2010, 6 Clerks - Private Sector Award 2010,7 the Storage Services and Wholesale Award 2010,8 the Miscellaneous Award 2010,9 or the Retail Award.
Commissioner’s decision
[9] In her decision the Commissioner set out the coverage clause of the Retail Award as follows :
“[12] The General Retail Industry Award 2010 provides at clause 4 the coverage of the award as follows:
‘4.1 This industry award covers employers throughout Australia in the general retail industry and their employees in the classifications listed in clause 16—Classifications to the exclusion of any other modern award. The award does not cover employers covered by the following awards:
4.2 The award does not cover an employee excluded from award coverage by the Act.
4.3 The award does not cover employees who are covered by a modern enterprise award, or an enterprise instrument (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to those employees.
4.4 The award does not cover employees who are covered by a State reference public sector modern award, or a State reference public sector transitional award (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to those employees.
4.5 This award covers any employer which supplies labour on an on-hire basis in the industry set out in clause 4.1 in respect of on-hire employees in classifications covered by this award, and those on-hire employees, while engaged in the performance of work for a business in that industry. This subclause operates subject to the exclusions from coverage in this award.
4.6 This award covers employers which provide group training services for apprentices and/or trainees engaged in the industry and/or parts of industry set out at clause 4.1 and those apprentices and/or trainees engaged by a group training service hosted by a company to perform work at a location where the activities described herein are being performed. This subclause operates subject to the exclusions from coverage in this award.
4.7 Where an employer is covered by more than one award, an employee of that employer is covered by the award classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work.
NOTE: Where there is no classification for a particular employee in this award it is possible that the employer and that employee are covered by an award with occupational coverage.’
[13] The general retail industry is defined as follows:
‘general retail industry means the sale or hire of goods or services to final consumers for personal or household consumption including:
and includes:
[10] The Commissioner then went on to consider the terms of the coverage clause against the evidence and submissions of GJE as follows:
“[14] I do not accept the submissions that the people who hire goods from the Applicant are not consumers.
[15] The Macquarie dictionary defines a consumer as “someone who uses a commodity or service.” It is clear that the trades customers and non-trades people who hire equipment from the Applicant are consumers.
[16] It was submitted that even if the trades customers were consumers that they do not use the goods for personal or household consumption. They use the equipment to provide services to others. To support its contention that the use of the goods was not for personal consumption the Applicant relied upon the fact that the trade customers passed on GST to their clients...
[18] Further the Applicant hires equipment to members of the general public and this is not an insubstantial part of their business.
[19] Whether the trades customers are able to claim a GST credit is not a relevant consideration.
[20] I accept the submissions of the Applicant that the Retail Industry (South Australia) Award did not apply to this business. However that does not change the conclusion I reached about the nature of the business operated by the Applicant.
[21] The Applicant also relied upon research published on the Fair Work Australia website which matched the modern awards with the Australian and New Zealand Standard Industrial Classification (ANZSIC) standards. The Applicant submitted that the ANZSIC does not categorise the type of work performed by this business as being in the retail trade. Construction machinery rental without an operator is in an entirely different classification to the retail trade classifications.
[22] The Applicant submitted that this was not of course determinative of the question before Fair Work Australia, and I agree.” 11
[11] The Commissioner concluded as follows:
“[23] I have reached the same conclusion as I reached in my earlier decision. The business is in the retail industry because it hires equipment to consumers for their personal or household consumption.
[24] As I have found that the relevant award for the purposes of the BOOT is the General Retail Industry Award 2010 I am not satisfied that the Agreement passes the BOOT. The Applicant accepted that if the General Retail Industry Award 2010 was the relevant award the Agreement would not pass the BOOT.
[25] The Applicant was provided with the opportunity to provide undertakings but did not do so. Consequently the application for approval of the Agreement is rejected.” 12
Grounds of appeal
[12] GJE submitted, in essence, that the Commissioner made an appealable error in concluding the Retail Award was a relevant modern award for the purposes of the BOOT, there being no relevant modern award covering GJE. Further, GJE submitted it is in the public interest that permission to appeal be granted because the appeal involves an important question regarding the scope of the Retail Award which has broader implications for other employers and employees in the equipment hire industry.
[13] In respect of these grounds of appeal, GJE submitted the Commissioner found the Retail Award covered GJE because it “hires equipment to consumers for their personal ... consumption.” 13 However, GJE said the “substantial character” of GJE’s enterprise is the hiring of goods to “trade customers”. Such “trade customers” are not “final consumers” hiring goods “for personal ... consumption” within the meaning of the coverage clause of the Retail Award, as concluded by the Commissioner. The Commissioner’s definition of the word “personal” in the coverage clause of the Retail Award is too broad as it extends to anyone, including a corporation, who uses the goods. The Commissioner’s definition leaves no work for the word “household” in the coverage clause of the Retail Award.
[14] GJE submitted the conjunctive phrase “final consumers for personal or household consumption” in the definition of the “general retail industry” in the Retail Award is directly attempting to exclude “trade customers”. The Retail Award is directed towards the sale or hire of goods for a personal or domestic purpose without any profit motive or gain, as opposed to goods which are to be used for a commercial or industrial purpose for profit or gain. GJE said this is exemplified by the word “household” and the list of inclusions in the definition of the “general retail industry” in the Retail Award.
[15] GJE maintained the Commissioner erred in the manner in which she construed the word “personal” in the coverage clause of the Retail Award and that error led the Commissioner to wrongly conclude that GJE is covered by the Retail Award and, thereby, that the Retail Award was a relevant award for the purposes of assessing whether the Agreement passed the BOOT.
Consideration of the grounds of appeal
[16] The Retail Award covers employers throughout Australia in the “general retail industry”. The Retail Award states that the “general retail industry” means:
“the sale or hire of goods or services to final consumers for personal or household consumption including:
● food retailing, supermarkets, grocery stores;
● department stores, clothing and soft goods retailing;
● furniture, houseware and appliance retailing;
● recreational goods retailing;
● personal and household goods retailing;
● household equipment repair services;
● bakery shops;
and includes:
● customer information and assistance provided by shopping centres or retail complexes;
● labour hire employees engaged to perform work otherwise covered by this award; and
● newspaper delivery drivers employed by a newsagent,
but does not include:
● community pharmacies;
● pharmacies in hospitals and institutions providing an in-patient service;
● hair and beauty establishments;
● hair and beauty work undertaken in the theatrical, amusement and entertainment industries;
● stand-alone butcher shops;
● stand-alone nurseries;
● retail activities conducted from a manufacturing or processing establishment other than seafood processing establishment;
● clerical functions performed away from the retail establishment;
● warehousing and distribution;
● motor vehicle retailing and motor vehicle fuel and parts retailing;
● fast food operations;
● restaurants, cafes, hotels and motels; or
● building, construction, installation, repair and maintenance contractors engaged to perform work at a retail establishment”.
[17] The coverage clause of the Retail Award also provides as follows:
“4.7 Where an employer is covered by more than one award, an employee of that employer is covered by the award classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work.
NOTE: Where there is no classification for a particular employee in this award it is possible that the employer and that employee are covered by an award with occupational coverage.”
[18] Industrial law provides that whether or not the enterprise of an employer is in a particular industry is a question of fact 14 determined by the “substantial character” of the enterprise in which the employer and its employees are concerned.15 However, the enterprise of an employer can have more than one character and be in more than one industry.16 Where an enterprise has more than one character it is not necessary to decide which is predominant,17 but a character must be substantial before it can ground a conclusion that the enterprise is in a particular industry.18
[19] A majority of a Full Bench of the Australian Industrial Relations Commission (AIRC) summarised the relevant law in Dyno Nobel Asia Pacific Limited v Construction, Forestry, Mining and Energy Union 19 as follows:
“[51] Drawing the High Court authorities together, we think the position is as follows:
(a) An eligibility rule, or part of an eligibility rule, that simply refers to persons employed or engaged “in or in connection with” a specified industry or industries is properly characterised a conventional industry rule and the discremen of eligibility under such a rule is the industry of the employer, that is, whether the trade or business of the employer is in or in connection with the specified industry or industries.
(b) Whether or not the trade or business of an employer is in or in connection with a particular industry is a question of fact.
(c) The answer to that question of fact is determined by the “substantial character” of the trade or business of the employer and all of its employees and requires a consideration of the business of the employer as a whole.
(d) The business of an employer can be ‘in or in connection with’ more than one industry. This outcome can arise in different ways:
(i) The business of the single employer is a single integrated enterprise but nevertheless operates substantially in or in connection with two or more industries simultaneously. This may be because:
(ii) The overall business of the single employer is properly seen as being constituted by two or more distinct businesses or enterprises each of which has a different “substantial character”.
(e) The mere supply of goods or services to a business in a particular industry is not, of itself, sufficient to render the business of the supplier one that is ‘in connection with’ the industry of the business supplied, even if those goods are essential to the operation of that business.
(f) Where a conventional industry rule applies in relation to a distinct business or enterprise of an employer, all of the employees in that business or enterprise are eligible for membership of the union.” (Footnotes omitted)
[20] In our view, such an approach is relevant to determining whether an employer is covered by a modern industry award.
[21] The evidence in this matter reveals that a substantial proportion, nearly 30%, of the revenue of GJE is derived from the hire of its equipment to non-trade, presumably domestic, customers and unidentified trade customers. In the evidence, it was not suggested the percentage of this proportion attributable to the unidentified trade customers is significant.
[22] A substantial character of the enterprise of GJE therefore is the “sale or hire of goods...to final consumers for personal or household consumption”. 20
[23] With such a substantial character, GJE is in the “general retail industry” as defined in Retail Award. As a result, the Retail Award covers GJE.
[24] That is not to say that GJE, consistent with the law, does not have another substantial character which also places it in another industry and covered by another modern award. Indeed clause 4.7 of the Retail Award, which we have earlier set out, recognises that an employer may be covered by more than one award. Clause 4.7 provides that where an employer is covered by more than one award, an employee of that employer is covered by the award classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work. However, GJE submitted that it was not covered by any modern award and there was an insufficient basis in the submissions or evidence for us to conclude any modern award, other than the Retail Award, covers GJE.
[25] GJE refuted the notion that it could have more than one substantial character and be in more than one industry on the basis that it was one indivisible enterprise, and also citing the decision of a Full Bench of the AIRC in Transport Workers’ Union of Australia v Budget Rent a Car Operations Pty Limited. 21 However, we are not persuaded that GJE is one indivisible enterprise. GJE itself differentiated its hiring to its trade customers from its hiring to its non-trade customers. Further, the Budget decision does not assist GJE. Budget concerned, in part, whether the Budget Rent a Car Operations Pty Limited (Budget Rental) car rental operations at Brisbane airport were in or in connection with the transport industry. The Full Bench held that the transport industry must mean the commercial transport industry and involve the transport of persons or goods for reward. The Full Bench noted that the business of Budget Rental was vehicle rental but that the evidence before it as to the purpose of the rentals was sparse. The Full Bench said that while it was possible that some of Budget Rental’s customers were in the transport industry, as some of those renting trucks may do so for commercial purposes, the Transport Workers’ Union of Australia had failed to show that the proportion of customers so engaged was of such significance that it could be said that Budget Rental’s operations were in connection with the transport industry.22 In this matter there is clear evidence about the significant proportion of GJE’s revenue attributable to non-trade, presumably domestic, customers.
[26] In respect of the BOOT and the Agreement in this matter, not only must the Retail Award cover GJE but it must also cover the employees in relation to the work they are to perform under the Agreement.
[27] The Retail Award covers employees in the classifications in clause 16 of the Retail Award. 23 Clause 16 of the Retail Award is as follows:
16.1 All employees covered by this award must be classified according to the structure set out in Schedule B - Classifications. Employers must advise their employees in writing of their classification and of any changes to their classification.
16.2 The classification by the employer must be according to the skill level or levels required to be exercised by the employee in order to carry out the principal functions of the employment as determined by the employer.”
[28] Schedule B of the Retail Award defines a Retail Employee Level 1 - 8 as follows:
“B.1 Retail Employee Level 1
B.1.1 An employee performing one or more of the following functions at a retail establishment:
B.1.2 Retail Employees will undertake duties as directed within the limits of their competence, skills and training including incidental cleaning. The cleaning of toilets is not incidental cleaning except in the case of a take away food establishment.
B.1.3 Indicative job titles which are usually within the definition of a Retail Employee Level 1 are:
B.1.4 Clerical Assistant means an employee accountable for clerical and office tasks as directed within the skill levels set out.
B.1.5 Employees at this level may include the initial recruit who may have limited relevant experience. Initially work is performed under close direction using established practices, procedures and instructions.
B.1.6 Such employees perform routine clerical and office functions requiring an understanding of clear, straightforward rules or procedures and may be required to operate certain office equipment. Problems can usually be solved by reference to established practices, procedures and instructions.
B.1.7 Employees at this level are responsible and accountable for their own work within established routines, methods and procedures and the less experienced employee’s work may be subject to checking at all stages. The more experienced employee may be required to give assistance to less experienced employees in the same classification.
B.1.8 Indicative typical duties and skills at this level may include:
B.2 Retail Employee Level 2
B.2.1 An employee performing work at a retail establishment at a higher skill level than a Retail Employee Level 1.
B.2.2 Indicative job titles which are usually within the definition of a Retail Employee Level 2 include:
B.3 Retail Employee Level 3
B.3.1 An employee performing work at a retail establishment at a higher level than a Retail Employee Level 2.
B.3.2 Indicative of the tasks which might be required at this level are the following:
B.3.3 Indicative job titles which are usually within the definition of a Retail Employee 3 include:
B.4 Retail Employee Level 4
B.4.1 An employee performing work at a retail establishment at a higher level than a Retail Employee Level 3.
B.4.2 Indicative of the tasks which might be required at this level are the following:
B.4.3 Indicative job titles which are usually within the definition of a Retail Employee 4 include:
B.4.4 Clerical Officer Level 2 characteristics:
B.4.5 Indicative typical duties and skills at this level may include:
(i) reconciliation of accounts to balance;
(ii) incoming/outgoing cheques;
(iii) invoices;
(iv) debit/credit items;
(v) payroll data;
(vi) petty cash Imprest System;
(vii) letters etc.
(i) create new files and records;
(ii) spreadsheet/worksheet;
(iii) graphics;
(iv) accounting/payroll file;
(v) following standard procedures and using existing models/fields of information.
B.5 Retail Employee Level 5
B.5.1 An employee performing work in or in connection with a retail establishment at a higher level than a Retail Employee Level 4.
B.5.2 Indicative job titles which are usually within the definition of a Retail Employee 5 include:
B.6 Retail Employee Level 6
B.6.1 An employee performing work in or in connection with a retail establishment at a higher level than a Retail Employee Level 5.
B.6.2 Indicative job titles which are usually within the definition of a Retail Employee 6 include:
B.6.3 Clerical Officer Level 3 characteristics:
B.6.4 Indicative typical duties and skills at this level may include:
(i) create new files and records;
(ii) maintain computer based records management systems;
(iii) identify and extract information from internal and external sources;
(iv) use of advanced word processing/keyboard functions.
*NOTE: These typical duties/skills may be either at Level 3 or Level 4 dependent upon the characteristics of that particular Level.
B.7 Retail Employee Level 7
B.7.1 An employee performing work in or in connection with a retail establishment at a higher level than a Retail Employee Level 6.
B.7.2 Indicative job titles which are usually within the definition of a Retail Employee Level 7 include:
B.7.3 Clerical Officer Level 4 characteristics:
B.7.4 Indicative typical duties and skills at this level may include:
(i) employment conditions
(ii) workers compensation procedures and regulations
(iii) superannuation entitlements, procedures and regulations
(i) create new files and records;
(ii) maintain computer based management systems;
(iii) identify and extract information from internal and external sources;
(iv) use of advanced word processing/keyboard functions.
*NOTE: These typical duties/skills may be either at Level 3 or Level 4 dependent upon the characteristics of that particular Level.
B.8 Retail Employee Level 8
B.8.1 An employee performing work in or in connection with a retail establishment at a higher level than a Retail Employee Level 7.
B.8.2 A person with a Diploma qualification.
B.8.3 Indicative job titles which are usually within the definition of a Retail Employee 8 include:
B.8.4 Clerical Officer Level 5 characteristics:
B.8.5 Indicative typical duties and skills at this level may include:
(i) account/financial
(ii) staffing
(iii) legislative requirements
(iv) other company activities.
[29] The employees covered by the Agreement are those employed by GJE in the job classifications set out in the Agreement. 24 The job classifications are described in Schedule 1 to the Agreement as follows:
“Hire Serviceperson
A Hire Serviceperson is an Employee who may be given the following responsibilities:
(a) following the directions of Hire Controllers and Hire Managers in day-to-day operations to the extent appropriate to their current skill level and experience;
(b) cleaning and maintaining hire equipment;
(c) servicing clients' needs and general administration;
(d) loading, unloading and delivering hire equipment; and
(e) cleaning and maintaining the branch showroom, yard and storage spaces.
Hire Controller
A Hire Controller is an Employee who performs the duties of a Hire Serviceperson, but at a higher level. A Hire Controller may be given the following additional responsibilities:
(a) supervising and training Hire Servicepersons;
(b) maintaining and improving client relations;
(c) opening and closing the branch;
(d) managing storage, bookings and movement of hire equipment placement in and out of the branch including sub hire, delivery and collection;
(e) processing paper work and data entry in relation to Hire desk;
(f) contacting clients in relation to unreturned or overdue hire equipment;
(g) managing the servicing and repairing of hire equipment to minimise down time; and
(h) ordering of all workshop consumables, parts and sales stock.
Hire Manager
A Hire Manager is responsible for the overall management and operation of the branch, as well as performing the duties of a Hire Controller. A Hire Manager may be given the following additional responsibilities:
(a) supervising Hire Controllers and Hire Servicepersons;
(b) managing daily workplace rosters;
(c) resolving customer complaints and grievances;
(d) preparing reports on sales and other matters for the Employer;
(e) identifying and mitigating OH&S risks in the workplace;
(f) report to the Employer any issues, problems or potential problems that may be detrimental to the smooth operation of the business, as they arise;
(g) assist and support the Employer in planning, improving and expansion of the business;
(h) manage the mandatory inspection and testing in relation to Electrical Testing of equipment and Elevated Work Platform access equipment; and
(i) making up and despatching banking.”
[30] A comparison of the descriptions of the job classifications in Schedule 1 of the Agreement with the definitions of a Retail Employee in Schedule B of the Retail Award indicates the job classification descriptions fall within the Retail Employee definitions. As a result, the Retail Award covers the employees of GJE in relation to the work they are to perform under the Agreement.
[31] There is no issue that the Retail Award is and was in operation at the “test time”. 25
[32] The appeal in this matter has raised general issues regarding the coverage of modern awards and, in particular, the Retail Award. Given the generality of the issues raised, we are satisfied it is in the public interest for us to grant permission to appeal and we do so. For the reasons we have given, however, we confirm the Commissioner’s decision that the Retail Award is the relevant modern award for the purposes of assessing whether the Agreement passes the BOOT.
Conclusion
[33] The Commissioner went on to indicate she was not satisfied the Agreement passed the BOOT, noting that GJE accepted that if the Retail Award was the relevant modern award the Agreement would not pass the BOOT. The Commissioner then noted GJE had been given the opportunity to provide her with undertakings. 26
[34] Section 190 of the FW Act provides that the FWC may approve an enterprise agreement with undertakings, given by a relevant employer, that meet the FWC’s concerns that the enterprise agreement does not meet the requirements for the FWC’s approval. However, GJE did not provide such undertakings to the Commissioner. Consequently, the Commissioner rejected GJE’s application for the FWC’s approval of the Agreement.
[35] Before us, GJE submitted that they did not dispute that if the Retail Award was the relevant modern award for the purposes of assessing whether the Agreement passes the BOOT, then the Agreement did not pass the BOOT and the Commissioner was right to dismiss the application.
[36] Like the Commissioner, we are not satisfied that at the test time each award covered employee, and each prospective award covered employee, for the Agreement would be better off overall if the Agreement applied to the employee than if the Retail Award applied to the employee. We are not satisfied the Agreement passes the BOOT. Since GJE is not prepared to give undertakings pursuant to s190 of the FW Act to meet that concern, 27 and there is no proper basis on which we can be satisfied that, because of exceptional circumstances, the approval of the Agreement would not be contrary to the public interest,28 we confirm the Commissioner’s decision to refuse to approve the Agreement.
[37] An order 29 giving effect to our decision is being issued at the same time as this decision.
SENIOR DEPUTY PRESIDENT
Appearances:
M Follett, of counsel, for the appellant.
Hearing details:
2013.
Melbourne:
31 January.
1 Endnotes:
Re G.J.E. Pty Ltd [2012] FWA 9549.
2 Re G.J.E Pty Ltd [2012] FWA 8232.
3 General Retail Award 2010, MA000004.
4 Fair Work Act 2009 (Cth.), ss186(2)(d) and 193.
5 Exhibit A2 in AG2012/9480.
6 Manufacturing and Associated Industries and Occupations Award 2010, MA000010.
7 Clerks - Private Sector Award 2010, MA000002.
8 Storage Services and Wholesale Award 2010, MA000084.
9 Miscellaneous Award 2010, MA000104.
10 Re G.J.E. Pty Ltd, [2012] FWA 9549.
11 Ibid.
12 Ibid.
13 Ibid at [23].
14 R v Hibble; Ex parte Broken Hill Pty Co Ltd (1921) 29 CLR 290 at 297; Re Federated Liquor and Allied Industries Employees Union of Australia; Ex parte Australian Workers’ Union (1976) 51 ALJR 266 at 268.
15 R v Central Reference Board; Ex parte Thiess (Repairs) Pty Ltd (1948) 77 CLR 123 at 135; Re Federated Liquor and Allied Industries Employees’ Union of Australia; Ex parte Australian Workers’ Union (1976) 51 ALJR 266 at 268.
16 R v Drake Brockman; Ex parte National Oil Pty Ltd (1943) 68 CLR 51 at 57; Dyno Nobel Asia Pacific Limited v Construction, Forestry, Mining and Energy Union, PR956868 at [51].
17 R v Isaac; Ex parte Transport Workers Union, (1985) 59 CLR 323 at 333.
18 R v Central Reference Board; Ex parte Thiess (Repairs) Pty Ltd (1948) 77 CLR 123 at 131; Burgess v Connell-Mott (1979) 27 ALR 427 at 442; Dyno Nobel Asia Pacific Limited v Construction, Forestry, Mining and Energy Union, PR956868 [50]-[51].
20 From the definition of the “general retail industry” in clause 3.1 of the General Retail Award 2010, MA000004.
22 Ibid at [16] - [18].
23 General Retail Award 2010, MA000004, clause 4.1.
24 All Equipment Hire Enterprise Agreement 2012, clause 2.
25 Fair Work Act 2012 (Cth), ss193(4), (5) and (6).
26 Re G.J.E. Pty Ltd, [2012] FWA9549 at [25]. See also Re G.J.E. Pty Ltd, [2012] FWA 8232 at [26].
27 Transcript in C2012/6403 at PN14-15 and 209.
28 Fair Work Act 2009 (Cth), s189.
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