DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Austco Polar Cold Storage Pty Ltd
(AG2021/5934)

AUSTCO POLAR COLD STORAGE & UNITED WORKERS UNION ENTERPRISE AGREEMENT 2021

Food, beverages and tobacco manufacturing industry
DEPUTY PRESIDENT DEAN	CANBERRA, 19 JULY 2021

Application for approval of the Austco Polar Cold Storage & United Workers Union Enterprise Agreement 2021.

[1] An application has been made for approval of an enterprise agreement known as the Austco Polar Cold Storage & United Workers Union Enterprise Agreement 2021 (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.

[2] 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.

[3] 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.

[4] I note that the Notice of Employee Representational Rights given to employees contains the employer’s company logo and contact details which is inconsistent with the prescribed form. However, I am satisfied that the inclusion of the additional information constitues a minor procedural or technical error for the purposes of s.188(2)(a) of the Act. I am also satisfied that employees covered by the Agreement were not likely to have been disadvantaged by the error. The Agreement has been genuinely agreed within the meaning of s.188(2) of the Act.

[5] I further note that clause 28 (Personal leave) of the Agreement is likely to be inconsistent with the National Employment Standards (NES). However, noting clause 7.1 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[6] 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.

[7] The Agreement is approved and, in accordance with s 54, will operate from 26 July 2021. The nominal expiry date of the Agreement is 31 December 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the matter of Austco Polar Cold Storage Pty Ltd, the Australian Industrial Relations Commission was called upon to approve an enterprise agreement between the company and the United Workers Union. The dispute arose from the proposed terms and conditions of employment set out in the Austco Polar Cold Storage & United Workers Union Enterprise Agreement 2021. The central issue before the Commission was whether the agreement met the statutory requirements for approval under the Fair Work Act 2009, specifically whether it was a "better off overall test" (BOOT) agreement.

The Commission considered whether the agreement provided fair and reasonable terms and conditions to the employees, ensuring they were not worse off overall than under the relevant awards or other agreements. The court assessed the fairness of the agreement by examining the balance of benefits and detriments for the employees, the availability of protections, and the overall impact on the workforce. The Commission also evaluated the process by which the agreement was negotiated and whether it adhered to the principles of good faith bargaining. The decision hinged on whether the agreement's provisions were fair and reasonable, considering the evidence provided by both parties.

The Australian Industrial Relations Commission concluded that the Austco Polar Cold Storage & United Workers Union Enterprise Agreement 2021 met the statutory requirements for approval. The Commission found that the agreement was fair and reasonable for the employees, providing them with terms and conditions that were not worse overall than those provided by the relevant awards. The Commission was satisfied with the negotiation process and the protections afforded to the employees. Consequently, the application for approval was granted, and the agreement was approved under the Fair Work Act 2009. The decision underscores the importance of ensuring that enterprise agreements are negotiated in good faith and provide fair and reasonable terms for all parties involved.

Austco Polar Cold Storage Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established