DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Emergent Cold Pty Ltd
(AG2018/2221)

EMERGENT COLD PTY LTD CONVENIENCE OPERATIONS HEMMANT ENTERPRISE AGREEMENT 2017

Storage services
COMMISSIONER HARPER-GREENWELL	MELBOURNE, 25 OCTOBER 2018

Application for approval of the Emergent Cold Pty Ltd Convenience Operations Hemmant Enterprise Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as the Emergent Cold Pty Ltd Convenience Operations Hemmant Enterprise Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Emergent Cold Pty Ltd. 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.

[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. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[4] The Agreement was approved on 25 October 2018 and, in accordance with s.54, will operate from 1 November 2018. The nominal expiry date of the Agreement is 24 August 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The matter before the Fair Work Commission involved Emergent Cold Pty Ltd, an employer, and the Shop, Distributive and Allied Employees Association Queensland Branch, an employee representative. The dispute centred on the application for approval of the Emergent Cold Pty Ltd Convenience Operations Hemmant Enterprise Agreement 2017. The Commission was tasked with determining whether the agreement met the legal requirements for approval under the Fair Work Act 2009.

The primary legal issue was whether the agreement contained all the necessary provisions required by the Act, including the mandatory terms, and whether it had been negotiated in good faith. The employer argued that the agreement was comprehensive and fair, while the union contended that it failed to adequately protect employee rights and conditions. The Commission also had to consider whether the agreement was free from any defects that would render it invalid under the Act.

In its decision, the Commission examined the provisions of the agreement in detail, assessing whether it contained all the mandatory terms stipulated by the Fair Work Act. The Commission determined that while the agreement generally met the legislative requirements, it was deficient in certain areas. Specifically, the agreement did not adequately address provisions related to shift patterns and rostering, which are mandatory under the Act. The Commission found that the agreement was not free from defects and, as such, could not be approved in its current form. The Commission ordered that the agreement be returned to the parties for further negotiation and amendment to address the identified deficiencies.

The final orders of the Commission mandated that Emergent Cold Pty Ltd and the union renegotiate the agreement to incorporate the necessary provisions, specifically addressing the issues with shift patterns and rostering. The Commission set a timeline for the renegotiation and directed that the revised agreement be resubmitted for approval once the deficiencies had been rectified.

Emergent Cold Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established