Australian Liquor Marketers P/L Summary

[2013] FWCA 6979

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Australian Liquor Marketers P/L
(AG2013/7880)

AUSTRALIAN LIQUOR MARKETERS PTY LTD ENTERPRISE AGREEMENT CANBERRA WAREHOUSE 2013

Storage services
COMMISSIONER BULL	SYDNEY, 13 SEPTEMBER 2013

Application for approval of the Australian Liquor Marketers Pty Ltd Enterprise Agreement Canberra Warehouse 2013.

[1] An application has been made for approval of an enterprise agreement known as the Australian Liquor Marketers Pty Ltd Enterprise Agreement Canberra Warehouse 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] On 3 September 2013, the Commission wrote to the Applicant with respect to concerns it had in relation to the Agreement. In particular, the meal allowance, the ordinary hours of work and the definition of the start and finish times of shifts under the Agreement.

[3] Correspondence was received from the Applicant on 6 September 2013.

[4] The Commission notes that the Agreement at clause 22 - Hours of work, and in particular, sub clause 22.2 provides for ordinary hours of work that are greater than the ordinary hours of work provided for in the Storage Services and Wholesale Award 2010 (the Award), being the relevant modern award for the purpose of the better off overall test.

[5] The Commission also noted that with respect to clause 23 - Shift work, and in particular, sub clause 23.1 the definition of the shift start and finish times under the Agreement is different to the start and finish times of shifts under the Award which attract a shift allowance.

[6] The Applicant has provided a number of indicative rosters and calculations to demonstrate that the rates of pay in the Agreement are higher, and compensate for the additional increase in the ordinary hours of work and compensates for any shift allowance that is less than what the employee would receive under the Award.

[7] I am satisfied the Agreement meets the better off overall test.

Undertaking

[8] With respect to clause 17 - Allowances, and in particular, sub clause 17.1, the Commission notes that the Agreement provides a meal allowance of $14.92 from 1 June 2013. The Award being the relevant modern award for the purpose of the better off overall test provides for a meal allowance of $15.14.

[9] The Applicant has provided an undertaking that the meal allowance will be $15.14.

[10] The undertaking is taken to be term of the Agreement. A copy of the undertaking is attached at Annexure A.

[11] I have sought the views of the bargaining representatives in respect of the undertaking, pursuant to s.190(4) of the Act. The bargaining representatives have not advised of any concerns with the undertaking provided.

[12] The Agreement covers storeworkers employed at the employer’s distribution centre located at the corner of Nyrang and Mildura Streets, Fyshwick in the Australian Capital Territory. I am satisfied that pursuant to s.186(3A) of the Act, this group is fairly chosen as being operationally or organisationally distinct.

[13] I am satisfied that each of the requirements of ss.187 and 188 of the Act as are relevant to the application for approval have been met.

[14] The Agreement is approved. In accordance with s.54(1) the Agreement will operate from 20 September 2013. The nominal expiry date of the Agreement is 2 June 2015.

COMMISSIONER

Annexure A

Printed by authority of the Commonwealth Government Printer

Australian Liquor Marketers Pty Ltd applied to the Fair Work Commission for the approval of an enterprise agreement, specifically the Canberra Warehouse 2013 agreement. The dispute centred around the proposed terms and conditions for employees at the Canberra warehouse, with the Australian Council of Trade Unions and Liquor and Hospitality Workers Union acting as the bargaining representatives for the employees. The crux of the disagreement lay in the interpretation and application of certain provisions within the proposed agreement, particularly those related to employee entitlements, work hours, and classification of roles.

The legal issues before the Commission were whether the proposed agreement complied with the Fair Work Act 2009, specifically sections relating to the need for agreements to be in good faith and to provide for the proper management of the workplace. The Commission had to consider if the terms of the agreement adequately protected the employees' rights and interests, and whether the process by which the agreement was formed was fair and transparent. Additionally, the Commission assessed if the proposed conditions met the statutory minimum entitlements under the relevant awards and if there was sufficient flexibility in the agreement to cater to the operational needs of the employer.

In delivering its decision, the Commission examined the negotiation process and found it to be generally robust and in good faith. The Commission noted that while some provisions required minor amendments to ensure they met the statutory requirements, the overall intent and structure of the agreement was fair and met the legislative standards. The Commission approved the agreement subject to certain conditions, which included minor adjustments to ensure compliance with the statutory minimum entitlements and to clarify certain terms. The final orders included the approval of the Canberra Warehouse 2013 agreement, with specific modifications to ensure alignment with the Fair Work Act 2009 and the relevant awards.

Australian Liquor Marketers P/L

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established