Martin Brower Australia Pty Ltd

[2021] FWCA 6677

[2021] FWCA 6677

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Martin Brower Australia Pty Ltd
(AG2021/8023)

MARTIN BROWER AUSTRALIA PTY LTD AND UNITED WORKERS UNION – SYDNEY WAREHOUSE ENTERPRISE AGREEMENT 2021

Storage services
COMMISSIONER MATHESON	SYDNEY, 12 NOVEMBER 2021

Application for approval of the Martin Brower Australia Pty Ltd and United Workers Union – Sydney Warehouse Enterprise Agreement 2021.

[1] An application has been made for approval of an enterprise agreement known as the Martin Brower Australia Pty Ltd and United Workers Union – Sydney Warehouse Enterprise Agreement 2021 (Agreement). The application was made by Martin Brower Australia Pty Ltd (Applicant) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single enterprise agreement.

[2] Since the application was made, the Commission raised concerns about whether the pre-approval requirements were met and whether the agreement passes the better off overall test. Further information was provided in relation to those concerns. A hearing was also held on 8 November 2021.

[3] I observe that clauses 24.1(d), 24.4 and 42.3(b) of the Agreement may be inconsistent with the National Employment Standards (NES). However, noting clause 7 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[4] The Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A of this decision (Undertakings). The views of each person I know is a bargaining representative for the Agreement were sought in relation to the Undertaking. The bargaining representative did not oppose the Undertaking. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or

(b) result in substantial changes to the Agreement.

[5] Pursuant to s.190(3) of the Act, I accept the Undertakings.

[6] Subject to the Undertakings, and on the basis of the materials before the Commission, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to the application for approval of the Agreement have been met.

[7] The United Workers 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) of the Act, I note that the Agreement covers the organisation.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 19 November 2021. The nominal expiry date of the Agreement is 31 July 2024.

COMMISSIONER

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Annexure A