Esr Group Holdings Pty Ltd T/A Early Settler

[2024] FWCA 4660

[2024] FWCA 4660

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Esr Group Holdings Pty Ltd T/A Early Settler

(AG2024/4041)

EARLY SETTLER VICTORIAN WAREHOUSE ENTERPRISE AGREEMENT 2024

Storage services
COMMISSIONER YILMAZ	MELBOURNE, 24 DECEMBER 2024

Application for approval of the Early Settler Victorian Warehouse Enterprise Agreement 2024

1. An application has been made for approval of an enterprise agreement known as the Early Settler Victorian Warehouse Enterprise Agreement 2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by ESR Group Holdings Pty Ltd T/A Early Settler. The Agreement is a single enterprise agreement.

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. In relation to the undertakings provided by the Employer, all refer to the relevant clause in the Agreement except for the first. The first undertaking is a general NES precedence clause which is not referenced in connection to a particular clause in the Agreement. Section 218A provides for the variation of enterprise agreements to correct or amend an obvious error, defect or irregularity. The Commission may vary an enterprise agreement on its own initiative and in the present circumstances it is appropriate to amend the Agreement so that the first undertaking is referenced as a new clause 6 c) and the title of clause 6 inserts the words “and NES”. The application of this variation will operate from the date of operation of this Agreement. The new clause reads as follows:

6. Relationship to Award and NES

………

6 c) This Agreement will be read and interpreted in conjunction with the National Employment Standards (NES). Where there is an inconsistency between this agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency.

1. I observe that certain provisions of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting the new clause 6 c) above, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency in clauses 14, 20.8 20.13, 20.14, 23.4, 24 and 26 of the Agreement and the NES.

1. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

1. The United Worker’s Union 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.

1. The Agreement is approved and in accordance with s.54, will operate from 31 December 2024. The nominal expiry date of the Agreement is 31 December 2027.

COMMISSIONER
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Annexure A