McColl’s Operations Pty Ltd

[2023] FWCA 3013

[2023] FWCA 3013

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

McColl’s Operations Pty Ltd

(AG2023/3002)

MCCOLL’S OPERATIONS PTY LTD QUEENSLAND BULK FOOD & BULK CHEMICALS COLLECTIVE AGREEMENT 2023-2026

Road transport industry
DEPUTY PRESIDENT DOBSON	BRISBANE, 18 SEPTEMBER 2023

Application for approval of the McColl’s Operations Pty Ltd Queensland Bulk Food & Bulk Chemicals Collective Agreement 2023 - 2026

1. An application has been made for approval of an enterprise agreement known as the McColl’s Operations Pty Ltd Queensland Bulk Food & Bulk Chemicals Collective Agreement 2023-2026 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by McColl’s Operations Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023.

1. Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. Question 18 of the Form F17A provides that the notification time for the Agreement was 6 July 2022.

1. Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The better off overall test provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the agreement was made before 6 June 2023. Question 26.2 of the Form F17A provides that the Agreement was made on 25 August 2023.

1. The Notice of Employee Representational Rights (NERR) distributed to employees appears to have a slightly different title to the final Agreement that was made. However, I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural departure from the prescribed form requirements of the NERR under s.174(1A) of the Act and that the employees covered by the Agreement were not likely to have been disadvantaged by this. Accordingly, I exercise the discretion conferred by s.188(2) of the Act.

1. The Applicant has provided written undertakings. 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.

1. The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

1. Pursuant to s.190(3) of the Act, I accept the undertakings.

1. Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

1. I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

·   Clause 4.5 – Public Holidays.

However, noting clause 1.4 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Transport Workers Union (TWU) lodged a Form F18 statutory declaration giving 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 the Agreement covers the TWU.

1. The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 17 September 2026.

DEPUTY PRESIDENT

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