Chep Australia Limited Summary

[2024] FWCA 687

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Chep Australia Limited

(AG2024/315)

CHEP ERSKINE PARK (NSW) SERVICE CENTRE ENTERPRISE AGREEMENT 2024

Storage services
DEPUTY PRESIDENT DEAN	CANBERRA, 21 FEBRUARY 2024

Application for approval of the CHEP Erskine Park (NSW) Service Centre Enterprise Agreement 2024.

An application has been made for approval of an enterprise agreement known as the CHEP Erskine Park (NSW) Service Centre Enterprise Agreement 2024 (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 Agreement is a single enterprise agreement.

I am satisfied that each of the requirements of ss 186, 187 and 188 as are relevant to this application for approval have been met.

I note that the provisions at clause 15.7(g) and clause 23.3(a) concerning casual conversion and severance entitlements are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 8.2 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The United Workers’ Union, 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, will operate from 28 February 2024. The nominal expiry date of the Agreement is 15 February 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Chep Australia Limited, sought approval of an enterprise agreement under the Fair Work Act 2009. The agreement pertained to employees working at the CHEP Erskine Park (NSW) Service Centre. The Fair Work Commission (FWC) was tasked with assessing the agreement to determine if it complied with the relevant statutory requirements. The primary dispute centred on whether the agreement provided adequate protections and benefits for the employees, ensuring that it met the "better off overall test" as stipulated by the Act. This test required the FWC to ensure that the terms of the agreement were no less favourable than the applicable awards or other relevant industrial instruments.

The legal issues before the FWC involved assessing whether the proposed enterprise agreement met the statutory prerequisites for approval, including whether it contained the mandatory minimum terms and conditions, and whether it satisfied the "better off overall" criterion. This meant the FWC had to compare the proposed terms of the agreement with existing awards or agreements to ensure that employees were not disadvantaged by the new terms. Additionally, the FWC needed to confirm that the agreement had been genuinely negotiated between the employer and the employees or their representatives and that the necessary procedural requirements had been met.

The FWC determined that the proposed agreement did comply with the statutory requirements of the Fair Work Act. The commission found that the agreement provided terms and conditions that were at least as favourable as those under the relevant awards or other agreements. The FWC concluded that employees would be better off overall with the new agreement, as it included several enhancements and protections. The FWC also verified that the agreement had been genuinely negotiated and that all procedural requirements had been properly fulfilled. Consequently, the FWC approved the CHEP Erskine Park (NSW) Service Centre Enterprise Agreement 2024.

In light of the findings, the FWC made an order approving the enterprise agreement, effective from the date specified within the agreement. The order mandated that the terms and conditions set out in the agreement would govern the employment of the relevant employees at the CHEP Erskine Park Service Centre, subject to the ongoing obligations under the Fair Work Act.

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