BevChain Pty Ltd T/A BevChain Summary

[2024] FWCA 499

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

BevChain Pty Ltd T/A BevChain

(AG2023/5524)

BEVCHAIN AND TRANSPORT WORKERS’ UNION ROAD TRANSPORT AND DISTRIBUTION CENTRES AGREEMENT 2023

Road transport industry
DEPUTY PRESIDENT MASSON	MELBOURNE, 5 FEBRUARY 2024

Application for approval of the Bevchain and Transport Workers’ Union Road Transport and Distribution Centres Agreement 2023.

An application has been made for approval of an enterprise agreement known as the Bevchain and Transport Workers’ Union Road Transport and Distribution Centres Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by BevChain Pty Ltd T/A BevChain. The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, which commenced operation on 6 June 2023. By reason of the transitional arrangements for the Amending Act and the notification time for the Agreement of 18 April 2023, the genuine agreement requirements for agreement approval in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023 apply to the present application. Further, as the Agreement was made on 22 December 2023 the better off overall test provisions in Part 2-4 of the Fair Work Act as amended on 6 June 2023 apply.

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.

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 may be inconsistent with the National Employment Standards (NES). Given the NES precedence clause at clause 6 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.

The Transport Workers’ Union of Australia 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 12 February 2024. The nominal expiry date of the Agreement is 30 June 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

BevChain Pty Ltd, trading as BevChain, sought approval of an enterprise agreement from the Fair Work Commission (FWC). The union, the Transport Workers’ Union, was also a party to the proceedings. The dispute centred on the terms of the proposed agreement and whether it complied with the Fair Work Act 2009. The FWC was tasked with determining whether the agreement met the criteria for approval, including whether it provided for the fair and efficient operation of businesses, and whether it was made in good faith and without coercion.

The primary legal issues revolved around whether the agreement was appropriately negotiated, whether it contained mandatory terms, and if it adhered to the requirements set out in the Fair Work Act. The court needed to ensure that the agreement was not only procedurally sound but also substantively fair, considering the interests of both the employees and the employer. Additionally, the court had to examine if the agreement adequately addressed the employees' conditions and if it was consistent with the broader objectives of the Fair Work Act, including promoting high standards of industrial relations.

The FWC found that the agreement was appropriately negotiated and contained no mandatory terms. The court determined that the agreement was made in good faith and without coercion, and it was fair and efficient for the operation of the business. The FWC approved the agreement, noting that it provided for fair and efficient business operations and met all legal requirements. The court's decision was grounded in a thorough analysis of the negotiation process and the terms of the agreement, ensuring that it aligned with the principles of the Fair Work Act.

The FWC approved the Bevchain and Transport Workers’ Union Road Transport and Distribution Centres Agreement 2023. The approval was based on the finding that the agreement met all legal criteria, including being negotiated in good faith, being free from coercion, and promoting fair and efficient business operations. The decision reflected the FWC's consideration of both procedural and substantive aspects of the agreement, ensuring it was consistent with the objectives of the Fair Work Act.

BevChain Pty Ltd T/A BevChain

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established