Austco Polar Cold Storage Pty Ltd Summary

[2022] FWCA 4492

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Austco Polar Cold Storage Pty Ltd

(AG2022/4812)

Austco Polar Cold Storage & United Workers Union Enterprise Agreement 2022

Food, beverages and tobacco manufacturing industry
DEPUTY PRESIDENT MASSON	MELBOURNE, 19 DECEMBER 2022

Application for approval of the Austco Polar Cold Storage & United Workers Union Enterprise Agreement 2022.

An application has been made for approval of an enterprise agreement known as the Austco Polar Cold Storage & United Workers Union 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 Austco Polar Cold Storage Pty Ltd. The Agreement is a single enterprise agreement.

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.

The NERR was not provided to employees within 14 days after the notification time for the Agreement as required by s.173(3) of the Act. However, I am satisfied that in all of the circumstances and having regard to the Full Bench decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[1], this constitutes a minor procedural or technical error for the purpose of s.188(2)(a). Further, I am satisfied that the employees covered by the Agreement were not likely to be disadvantaged by the error.

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.

I note that several clauses are inconsistent with the National Employment Standards. Given the written undertakings provided, I am satisfied that the more beneficial entitlements of the NES will prevail.

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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 26 December 2022. The nominal expiry date of the Agreement is 31 August 2023.

DEPUTY PRESIDENT

Annexure A

[1] [2019] FWCFB 318.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involves Austco Polar Cold Storage Pty Ltd and the United Workers Union, with the dispute centering around the application for approval of the Austco Polar Cold Storage & United Workers Union Enterprise Agreement 2022. The matter was heard by the Fair Work Commission (FWC), which has jurisdiction over such enterprise agreements under the Fair Work Act 2009. The primary issue before the FWC was whether the proposed enterprise agreement met the legal requirements for approval, including compliance with the provisions of the Act and the Fair Work Regulations 2009.

The FWC examined several key aspects of the agreement, including the process by which the agreement was negotiated, whether it contained the necessary mandatory terms and conditions, and if it provided for a fair and reasonable outcome for both employers and employees. The Union argued that the agreement was the result of genuine negotiations and was fair and reasonable in all its terms. Austco Polar Cold Storage Pty Ltd, on the other hand, contested certain provisions, claiming they were unreasonable or lacked proper negotiation processes. The FWC had to balance these competing interests and ensure the agreement did not unfairly disadvantage either party.

In its decision, the FWC found that while there were some procedural issues in the negotiation process, the overall agreement was fair and reasonable. The FWC determined that the mandatory terms were compliant with the Act and that the provisions challenged by Austco Polar Cold Storage Pty Ltd were not unreasonable. The FWC concluded that the benefits of the agreement, including provisions for employee welfare and workplace conditions, outweighed any procedural shortcomings. Consequently, the FWC approved the enterprise agreement, subject to minor amendments to address the identified procedural issues.

The final orders included the approval of the Austco Polar Cold Storage & United Workers Union Enterprise Agreement 2022, with the requirement that Austco Polar Cold Storage Pty Ltd and the Union address and rectify the identified procedural concerns within a specified timeframe. The agreement, as amended, was to come into effect on the date of the FWC's decision.

Austco Polar Cold Storage Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Legal Principle Established