Americold Logistics Limited T/A Americold Logistics

[2023] FWCA 382

[2023] FWCA 382

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Americold Logistics Limited T/A Americold Logistics

(AG2023/12)

AMERICOLD NEW SOUTH WALES – ENTERPRISE AGREEMENT 2022

Storage services
COMMISSIONER CIRKOVIC	MELBOURNE, 8 FEBRUARY 2023

Application for approval of the Americold New South Wales – Enterprise Agreement 2022

1. An application has been made for approval of an enterprise agreement known as the Americold New South Wales – Enterprise 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 Americold Logistics Limited T/A Americold Logistics. The Agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 31 January 2023.

1. On 1 February 2023, my Chambers sent correspondence to the parties seeking to address concerns with certain aspects of the Agreement and invited the parties to address these matters. The concerns were as follows:

• Clause 7.9.5, relating to deductions in relation to protective clothing costs, may be contrary to s.324 of the Act and unenforceable should the Agreement be approved;

• Clause 2.3 of the Agreement does not provide for consultation in relation to a proposed change to the regular roster or ordinary hours of work nor require the employer to invite the views of employees in relation to a proposed change to the regular roster or ordinary hours of work. This is inconsistent with s.205(1A)(b) of the Act; and

• Clauses 2.4 and 2.2.7 of the Act, relating to casual conversion and withholding termination entitlements, were potentially inconsistent with the National Employment Standards (NES). I sought an NES precedence undertaking to resolve this issue.

1. 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.

1. 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 Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

1. Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

1. The Australasian Meat Industry Employees 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) I note that the Agreement covers the organisation.

1. The Agreement was approved on 8 February 2023 and, in accordance with s.54, will operate from 15 February 2023. The nominal expiry date of the Agreement is 1 September 2025.

COMMISSIONER

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Annexure A