Austco Polar Cold Storage Pty Ltd

[2024] FWCA 1374

[2024] FWCA 1374

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Austco Polar Cold Storage Pty Ltd

(AG2024/825)

AUSTCO POLAR COLD STORAGE & UNITED WORKERS UNION ENTERPRISE AGREEMENT 2023-2026

Storage services
COMMISSIONER CONNOLLY	MELBOURNE, 17 APRIL 2024

Application for approval of the Austco Polar Cold Storage & United Workers Union Enterprise Agreement 2023-2026

1. An application has been made for approval of an enterprise agreement known as the Austco Polar Cold Storage & United Workers Union Enterprise Agreement 2023-2026 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Austco Polar Cold Storage Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 26 March 2024.

1. The notification time for the Agreement under s.173(2) was 17 November 2023 and the Agreement was made on 5 March 2024. Accordingly, both the genuine agreement and the better off over all test (BOOT) requirements are those applying on and from 6 June 2023.[1]

1. On 2 April 2024, the Employer was invited to address aspects of the Agreement including through the provision of an undertaking.

1. There is one National Employment Standards (NES) issues that requires a comment:

·  Casual conversion – Clause 13.6 of the agreement provides that where casual employees are engaged on a regular basis for a period of 12 months, they will be offered a permanent position if available. This is less beneficial than the Act, which provides at section 66B that an employee is required only to have been employed for a period of 12 months and working a regular pattern of hours during at least the prior 6 month period.

1. Clause 7.1 of the Agreement acts as an effective NES precedence clause, in that it states where there is any inconsistency between this Agreement and the NES, the provision that is more beneficial to the employees shall prevail. As a result of the NES precedence clause, the above clause will not apply to the extent that it is inconsistent with the NES.

1. The Employer has provided written undertakings dated 11 April 2024. 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. 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.

1. 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) I note that the Agreement covers the organisation.

1. 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 of the Agreement is 31 August 2026.

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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