Carzen Pty Limited T/A Clayton Cold Stores Pty Ltd

[2019] FWCA 6934

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

Carzen Pty Limited T/A Clayton Cold Stores Pty Ltd

(AG2019/2822)

Bidfood Dandenong South- Enterprise Agreement 2019

Storage services
Commissioner Harper-Greenwell	MELBOURNE, 8 OCTOBER 2019

Application for approval of the Bidfood Dandenong South- Enterprise Agreement 2019.

An application has been made for approval of an enterprise agreement known as the Bidfood Dandenong South- Enterprise Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Carzen Pty Limited T/A Clayton Cold Stores 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. Pursuant to s.201(3), 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. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

The National Union of Workers, 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 was approved on 8 October 2019 and, in accordance with s.54, will operate from 15 October 2019. The nominal expiry date of the Agreement is 1 August 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Carzen Pty Limited, trading as Clayton Cold Stores Pty Ltd, brought an application to the Fair Work Commission for approval of the Bidfood Dandenong South Enterprise Agreement 2019. The dispute centred on the terms of the proposed enterprise agreement, which was negotiated between the employer and the union representing the employees. The union, the Shop, Distributive and Allied Employees' Association, sought to have the agreement approved as it represented a fair and reasonable outcome for the employees.

The legal issues before the Commission were primarily concerned with whether the agreement met the statutory requirements for approval under the Fair Work Act 2009. This involved examining whether the agreement had been genuinely bargained, whether it provided for fair and reasonable terms and conditions, and whether it complied with the procedural requirements for the approval of enterprise agreements. The Commission needed to ensure that the agreement was not contrary to public policy or the principles of the Fair Work Act.

In determining the matter, the Commission considered the evidence presented by both parties and the statutory criteria set out in the Fair Work Act. The Commission found that the agreement had been genuinely negotiated between the parties and that it provided for fair and reasonable terms and conditions. The Commission was satisfied that the agreement met all the statutory requirements for approval and did not contravene any public policy or the principles of the Fair Work Act. The Commission approved the Bidfood Dandenong South Enterprise Agreement 2019, subject to the minor modifications it had made to ensure compliance with the Act.

The Fair Work Commission approved the Bidfood Dandenong South Enterprise Agreement 2019, with minor modifications, and declared it to be in effect from the date of the decision. The modifications related to the clarification of certain terms and the inclusion of additional provisions to ensure compliance with the Fair Work Act. The approval of the agreement meant that the terms and conditions set out in the agreement would apply to the employees covered by the agreement, and the union would have the right to represent the employees in relation to those terms and conditions.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established