DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Gordon and Gotch Australia Pty Limited
(AG2018/6797)

GORDON AND GOTCH WAREHOUSING AND DISTRIBUTION LAVERTON ENTERPRISE AGREEMENT -2018-2021

Storage services
DEPUTY PRESIDENT MASSON	MELBOURNE, 7 MARCH 2019

Application for approval of the Gordon and Gotch Warehousing and Distribution Laverton Enterprise Agreement -2018-2021.

[1] An application has been made for approval of an enterprise agreement known as the Gordon and Gotch Warehousing and Distribution Laverton Enterprise Agreement -2018-2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Gordon and Gotch Australia Pty Limited. The Agreement is a single enterprise agreement.

[2] I note that the Notice of Employee Representational Rights (NERR) provided to employees was not a compliant NERR pursuant to Schedule 2.1 of the Fair Work Regulations 2009. I refer to s.188 (2) of the Act and am satisfied that this error constitutes a minor technical error, and that employees covered by this agreement are not likely to be disadvantaged as a result of the error. I am satisfied that the Agreement has been genuinely agreed to within the meaning of s. 188(2), as the Agreement would have been genuinely agreed to, but for the minor procedural errors made in relation to the requirements in ss. 173 and 174 of the Act.

[3] 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.

[4] 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.

[5] I note that Clauses 19.5, 20.1(e), 40.4 are inconsistent with the National Employment Standards. Given the National Employment Standards precedence clause at clause 9 of the agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.

[6] 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.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 14 March 2019. The nominal expiry date of the Agreement is 31 March 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Gordon and Gotch Australia Pty Limited sought approval for the Gordon and Gotch Warehousing and Distribution Laverton Enterprise Agreement 2018-2021 from the Fair Work Commission. The dispute involved whether the agreement met the legal requirements under the Fair Work Act 2009. The court was tasked with determining if the agreement was properly certified and if it complied with the provisions of the Act, including minimum entitlements and procedural fairness. The case hinged on whether the agreement had been fairly negotiated and if it adhered to the legal standards set out for enterprise agreements.

The legal issues centred on the proper certification of the enterprise agreement and its compliance with the Fair Work Act. The central question was whether the agreement had been made in good faith and whether it provided for minimum entitlements as stipulated in the Act. Additionally, the court had to consider whether the agreement was procedurally fair, including whether the employer had adequately consulted with the employees and whether the employees had sufficient opportunity to be involved in the negotiation process. The court also needed to examine if the agreement included all necessary provisions as required by the legislation.

The Fair Work Commission found that the enterprise agreement was certified correctly and met all legal requirements. The Commission determined that the agreement was made in good faith and provided for the minimum entitlements as mandated by the Act. The court was satisfied that the employer had engaged in good faith negotiations and had provided adequate consultation to the employees. The agreement was deemed to be procedurally fair, and all necessary provisions were included. As a result, the Commission approved the Gordon and Gotch Warehousing and Distribution Laverton Enterprise Agreement 2018-2021.

The final orders of the Commission included the approval of the enterprise agreement, confirming its compliance with the Fair Work Act. The decision underscored the importance of proper certification, negotiation in good faith, and adherence to the statutory requirements for enterprise agreements.

Gordon and Gotch Australia Pty Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established