CHEP Australia Ltd T/A CHEP Australia

[2019] FWCA 6753

[2019] FWCA 6753

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

CHEP Australia Ltd T/A CHEP Australia
(AG2019/2971)

CHEP ROCKLEA (QLD) SERVICE CENTRE ENTERPRISE AGREEMENT 2019

Storage services
COMMISSIONER LEE	MELBOURNE, 1 OCTOBER 2019

Application for approval of the CHEP Rocklea (QLD) Service Centre Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the CHEP Rocklea (QLD) Service Centre 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 CHEP Australia Ltd T/A CHEP Australia. The Agreement is a single enterprise agreement.

[2] 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. The undertakings are taken to be a term of the agreement.

[3] 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.

[4] 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.

[5] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

•  Clause 29.3 – Annual Leave

•  Clause 31.3 (a) – Entitlement to paid personal leave and payment

•  Clause 31.5 - Entitlement to paid personal leave and payment

However, noting clause 8.1 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.

[6] I note that clause 23.9 (b) of the Agreement provides that if an employee fails to give notice or complete the notice period, the Company shall have the right to withhold monies due to the employee. In my view, the clause may provide for deductions which are not permitted deductions within the meaning of s. 324 of the Act. Pursuant to s. 326 of the Act, the clause will have no effect to the extent that it is not a permitted deduction. However, notwithstanding my view on that, it is not a matter to which I am to have regard in terms of whether or not the Agreement should be approved and it does not represent a barrier to the approval of the Agreement.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 8 October 2019. The nominal expiry date of the Agreement is 10 June 2022.

COMMISSIONER

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Annexure A