DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Emergent Cold Pty Ltd
(AG2019/3456)

EMERGENT COLD PTY LTD CONVENIENCE OPERATIONS LURNEA ENTERPRISE AGREEMENT 2019

Storage services
DEPUTY PRESIDENT YOUNG	MELBOURNE, 10 OCTOBER 2019

Application for approval of the Emergent Cold Pty Ltd Convenience Operations Lurnea Enterprise Agreement 2019.

[1] Emergent Cold Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Emergent Cold Pty Ltd Convenience Operations Lurnea Enterprise Agreement 2019 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] The Employer has provided a written undertaking. A copy of the undertaking is attached at Annexure A. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and the undertaking will not result in substantial changes to the Agreement. The undertaking is taken to be a term of the agreement.

[3] Subject to the undertakings referred to above, and on the basis of the material contained in the application, the accompanying statutory declaration, and the additional information provided by the Employer, 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 Australasian Meat Industry Employees Union, being a bargaining representative for the Agreement, has given notice under s 183 of the Act that it seeks to be covered by the Agreement. In accordance with s 201(2) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

[5] The Agreement was approved on 10 October 2019 and, in accordance with s 54, will operate from 17 October 2019. The nominal expiry date of the Agreement is 31 July 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Emergent Cold Pty Ltd applied to the Fair Work Commission for approval of the Emergent Cold Pty Ltd Convenience Operations Lurnea Enterprise Agreement 2019. The application was opposed by the Retail and Fast Food Workers Union of Victoria, an affiliated organisation. The nature of the dispute centred on the terms of the proposed enterprise agreement, particularly those related to penalty rates and shift differentials for employees working in convenience stores.

The legal issues before the Commission included whether the proposed agreement met the requirements of the Fair Work Act 2009, particularly in relation to the "better off overall test" and whether the agreement contained terms that were consistent with the objectives of the Act. Additionally, the Commission had to determine whether the agreement was made in accordance with the procedural requirements of the Act, including whether there was genuine bargaining between the parties and whether the agreement was supported by a majority of the employees.

The Fair Work Commission, after considering the evidence and submissions from both parties, found that the proposed agreement did not meet the better off overall test. The Commission held that the penalty rate reductions and shift differentials proposed in the agreement would result in a significant reduction in take-home pay for employees, thereby failing the better off overall test. Furthermore, the Commission found that the agreement had not been made through genuine bargaining, as the union had not adequately represented the interests of the employees. Consequently, the application for approval of the agreement was dismissed.

The Commission ordered that the application for approval of the Emergent Cold Pty Ltd Convenience Operations Lurnea Enterprise Agreement 2019 be dismissed. The Commission did not make any orders regarding the terms of any future enterprise agreement between the parties, leaving it to the parties to negotiate further.

Emergent Cold Pty Ltd

DECISION

Annexure A

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established