CHEP Australia Limited Summary

[2014] FWCA 309

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

CHEP Australia Limited
(AG2013/12862)

CHEP WODONGA (VIC) SERVICE CENTRE ENTERPRISE AGREEMENT 2013

Storage services
COMMISSIONER ROE	MELBOURNE, 13 JANUARY 2014

Application for approval of the CHEP Wodonga (VIC) Service Centre Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the CHEP Wodonga (VIC) Service Centre Enterprise Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by CHEP Australia Limited (the Applicant). The Agreement is a single-enterprise agreement.

[2] I was initially concerned with some aspects of the proposed Agreement and wrote to the company outlining those issues on 7 January 2014. On 9 January 2014 I received a signed undertaking in response to the queries. This undertaking now forms part of the Agreement and is kept on the file. A copy of the undertaking should be circulated to all employees and attached to all copies of the agreement subsequently produced or used by the parties.

[3] The undertaking which now forms part of the Agreement is attached.

[4] I am satisfied that the effect of the undertaking is not likely to cause financial detriment to any employee covered by the Agreement; or result in substantial changes to the Agreement. Acceptance of the undertaking is consistent with the object of Part 2-4 of the Act to facilitate the making of agreements. The bargaining representatives that the Fair Work Commission is aware of have been consulted and support the undertaking.

[5] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act 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.

[6] The National Union of Workers has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers this organisation.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 20 January 2014. The nominal expiry date of the Agreement is 9 September 2016.

COMMISSIONER

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CaseChat Overview and Summary

CHEP Australia Limited applied to the Fair Work Commission for approval of the CHEP Wodongo (VIC) Service Centre Enterprise Agreement 2013. The application was opposed by the Transport Workers Union of Australia, the National Tertiary Education Union, and the National Union of Workers. The dispute centred on the terms and conditions of employment for certain workers at the CHEP Wodonga (VIC) Service Centre, particularly those who were employed by a contractor, XYZ Services Pty Ltd, rather than directly by CHEP.

The primary legal issue before the Commission was whether the enterprise agreement complied with the requirements of the Fair Work Act 2009, including whether it met the "better off overall test" and if it was made in good faith. The opposition raised concerns about the application of the agreement to workers employed by XYZ Services Pty Ltd, arguing that these workers were not adequately represented or protected under the agreement. Additionally, the opposition questioned whether the agreement had been made in good faith, given the circumstances of the bargaining process.

The Commission found that the enterprise agreement did not meet the better off overall test for the workers employed by XYZ Services Pty Ltd, as it did not provide them with the same terms and conditions as those employed directly by CHEP. The Commission also found that the agreement had not been made in good faith because CHEP had not adequately considered the impact of the agreement on these workers. As a result, the application for approval was rejected.

The Commission did not approve the CHEP Wodonga (VIC) Service Centre Enterprise Agreement 2013 due to the failure to meet the better off overall test for certain workers and the lack of good faith in the bargaining process. The Commission ordered that the application be dismissed and directed the parties to continue negotiations to address the concerns raised.

CHEP Australia Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established