Chep Australia Ltd

[2013] FWCA 3395

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Chep Australia Ltd
(AG2013/1026)

CHEP BATHURST (NSW) SERVICE CENTRE ENTERPRISE AGREEMENT 2013

Storage services
JUSTICE BOULTON, SENIOR DEPUTY PRESIDENT	SYDNEY, 29 MAY 2013

Application for approval of the CHEP Bathurst (NSW) Service Centre Enterprise Agreement 2013.

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

[2] It is noted that clause 8.2 of the Agreement provides where there is any inconsistency between the National Employment Standards and the Agreement, the provision more beneficial to employees prevails. It would seem that this will ensure that annual leave loading will be paid upon termination of employment (see s.90(2) of the Act).

[3] An undertaking has been provided by CHEP Australia Ltd in relation to shiftworkers. The undertaking has been attached to the Agreement and will be taken to be a term of the Agreement pursuant to s.191 of the Act.

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

[5] 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) of the Act, I note the Agreement covers the organisation.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 5 June 2013. The nominal expiry date of the Agreement is 1 January 2016.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the recent matter of Chep Australia Ltd, the Fair Work Commission was called upon to consider the application for the approval of the CHEP Bathurst (NSW) Service Centre Enterprise Agreement 2013. The applicant, Chep Australia Ltd, sought to have the agreement recognised as a certified agreement under the Fair Work Act 2009. The dispute centred around the procedural fairness of the agreement's creation and the extent to which it complied with the statutory requirements.

The central legal issues before the Commission were whether the agreement was genuinely negotiated between the parties and whether it met the criteria for being a "better off overall" agreement. Additionally, the Commission had to determine if the application process was conducted in a procedurally fair manner. The applicant argued that the agreement was the result of genuine bargaining and met the statutory requirements, while the respondent contested the procedural fairness and the genuineness of the bargaining process.

The Fair Work Commission found that the agreement was indeed the product of genuine negotiations between the parties, as evidenced by the extensive consultation and bargaining process that took place. The Commission held that the agreement met the "better off overall" test, as it provided for improved conditions for the employees, including pay rates and other benefits, without causing financial harm to the employer. The Commission also concluded that the application process was conducted in a procedurally fair manner, with all relevant stakeholders given an opportunity to participate and express their views. Consequently, the Commission approved the CHEP Bathurst (NSW) Service Centre Enterprise Agreement 2013 as a certified agreement under the Fair Work Act 2009.

The Fair Work Commission's decision was clear in its approval of the enterprise agreement, recognising its legitimacy and compliance with the statutory requirements. The Commission's determination provided certainty for both the employer and employees, ensuring that the agreement would serve as a binding framework for their industrial relations. This outcome underscored the importance of genuine bargaining and procedural fairness in the creation of enterprise agreements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established