Chep Australia Limited

[2013] FWCA 8271

FAIR WORK COMMISSION

DECISION

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

Chep Australia Limited
(AG2013/10619)

CHEP NSW METROPOLITAN (LIDCOMBE, FLEMINGTON AND ROSEHILL) SERVICE CENTRES ENTERPRISE AGREEMENT 2013

Storage services
COMMISSIONER ROE	MELBOURNE, 22 OCTOBER 2013

Application for approval of the CHEP NSW Metropolitan (Lidcombe, Flemington and Rosehill) Service Centres Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the CHEP NSW Metropolitan (Lidcombe, Flemington and Rosehill) Service Centres 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 9 October 2013. On 17 October 2013 I received a signed undertaking in response to the queries from Sonja Ankucic, Human Resources Manager, for Chep Australia Limited. 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 the organisation.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 29 October 2013. The nominal expiry date of the Agreement is 28 August 2016.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Chep Australia Limited, sought approval of the CHEP NSW Metropolitan (Lidcombe, Flemington and Rosehill) Service Centres Enterprise Agreement 2013 from the Fair Work Commission. The dispute involved the interpretation and application of the Fair Work Act 2009 and the principles of good faith bargaining. The Commission was required to determine whether the agreement was genuinely negotiated and if it complied with the relevant statutory requirements.

The legal issues before the Commission included whether the agreement was genuinely negotiated between the parties and whether it complied with the procedural and substantive requirements set out in the Fair Work Act. Additionally, the Commission had to assess if the agreement met the 'better off overall test', ensuring that employees were not disadvantaged compared to their previous conditions. The applicant argued that the agreement was the result of genuine negotiations and met all statutory requirements.

In its decision, the Fair Work Commission found that the agreement was genuinely negotiated and met the procedural and substantive requirements under the Fair Work Act. The Commission noted that there was evidence of good faith bargaining and that the agreement was not worse off for employees than their previous conditions. The Commission also concluded that the agreement met the 'better off overall test', ensuring that employees were not disadvantaged by the terms of the agreement.

The Commission approved the CHEP NSW Metropolitan (Lidcombe, Flemington and Rosehill) Service Centres Enterprise Agreement 2013. The decision was made in accordance with the Fair Work Act, recognising the agreement as a genuine outcome of negotiations and one that met all legal requirements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established