EG Fuelco (Australia) Limited T/A EG Australia

[2022] FWCA 4368

[2022] FWCA 4368

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

EG Fuelco (Australia) Limited T/A EG Australia

(AG2022/4780)

EG Australia Fuel & Convenience Enterprise Agreement 2022

Vehicle industry
COMMISSIONER LEE	MELBOURNE, 13 DECEMBER 2022

Application for approval of the EG Australia Fuel & Convenience Enterprise Agreement 2022

1. An application has been made for approval of an enterprise agreement known as the EG Australia Fuel & Convenience Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by EG Fuelco (Australia) Limited T/A EG Australia. The Agreement is a single enterprise agreement.

1. On 1 December 2022 the Retail and Fast Food Workers Union Incorporated Trading as Retail and Fast Food Workers Union (RAFFWU) lodged a Form F18A. The RAFFWU raised concerns that the group to be covered by the purported Agreement was not fairly chosen. In particular, that the exclusion of persons merely because they are engaged as a salaried assistant store manager is contrary to the intention of the Act.

1. The Applicant lodged submissions in response to the RAFFWU’s concerns on 5 December 2022. The RAFFWU provided a response to the Applicant’s submissions on 6 December 2022.

1. I wrote to the parties on 6 December 2022 indicating that I had received the submission by the Applicant responding to the issues raised in the RAFFWU’s Form F18A, and the further views of the RAFFWU. I did not seek any further submissions from any party. However, if any party wished to be heard in respect to the application, they were to advise my chambers by no later than close of business on Wednesday, 7 December 2022. No correspondence was subsequently received by my chambers from any party wishing to be heard.

1. Having considered those submissions I am satisfied that the group of employees was fairly chosen. The group that are excluded from coverage, that is the salaried positions of Assistant Store Managers, Store Managers or higher classifications are similar to those excluded from coverage in the Woolworths Supermarkets Agreement 2018 (Woolworths Agreement) approved by Deputy President Gostencnik.[1] In that matter the Deputy President determined that the group was fairly chosen, notwithstanding the exclusion of those employees. That decision was the subject of an appeal, with the appeal grounds including alleged error on the part of the Deputy President in finding the group was fairly chosen. The full bench refused permission to appeal.[2]

1. While I agree with RAFFWU that the Woolworths Agreement matter turns on its own facts, there was no particular issue raised which distinguishes this matter in any significant regard from the Woolworths Agreement decision.

1. It is not apparent that the coverage of the Agreement was a significant issue in bargaining, if it was an issue at all. Nevertheless, the views of the RAFFUW are important as a bargaining representative. The views of the Australian Workers' Union and the Shop, Distributive and Allied Employees Association are also important. These Unions support approval and have not made any submissions on the fairly chosen point.

1. The predecessor Agreement[3] excluded salaried positions of trainee site manager or higher classifications. The coverage for the Agreement before me has a differently framed exclusion as it includes salaried assistant store managers and salaried store managers or higher classifications. I agree with the submission of the Applicant that the effect of the exclusion provision in the predecessor Agreement was to exclude salaried Assistant Store managers as well as Store Managers and Trainee Site Managers[4] However, even if that is not correct, the change in coverage does not necessarily mean the group is not fairly chosen.

1. There is no evidence or suggestion that the group chosen was one made as a means of manipulating the voter outcome. Nor is there evidence that it has had a negative impact on collective bargaining. No party suggests that the group was geographically, operationally, or organisationally distinct. This is certainly a relevant but not a decisive factor.[5]

1. Overall, given the predecessor Agreement coverage has a similar, though not the same exclusion; the absence of evidence the group was chosen in order to manipulate the outcome or undermine collective bargaining; the fact that coverage did not feature as a significant factor, if at all during bargaining; and the views of the Australian Workers' Union and the Shop, Distributive and Allied Employees Association who support approval and have not taken issue with the coverage, I consider that although the group covered by the Agreement is not geographically, operationally or organisationally distinct, nevertheless taking into account the circumstances, the group of employees covered by the Agreement is fairly chosen.

1. 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.

1. 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.

1. Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

1. Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

1. The Australian Workers' Union and the Shop, Distributive and Allied Employees Association being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the organisations.

1. I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

·   Clause 27.2.5 – Notice of Termination by the Company

·   Clause 27.6 – Abandonment of Employment

·   Clause 29.6.3 – Severance Pay

·   Clause 29.10 – Team Members Exempted

However, noting the undertaking provided, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 30 January 2023. The nominal expiry date of the Agreement is 31 January 2026.

COMMISSIONER

Annexure A

[1] [2019] FWCA 7

[2] [2019] FWCFB 2355

[3] [2013] FWCA 1473

[4] Applicant’s Submissions 5 December 2022 at [13].

[5] [2019] FWCA 7 at 109

Printed by authority of the Commonwealth Government Printer

<AE518528  PR748813>