McColl’s Operations Pty Ltd
[2023] FWCA 2077
•3 AUGUST 2023
| [2023] FWCA 2077 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
McColl’s Operations Pty Ltd
(AG2023/1949)
MCCOLL’S OPERATIONS, NEW SOUTH WALES DAIRY TRANSPORT AGREEMENT 2023-2026.
| Road transport industry | |
| DEPUTY PRESIDENT O’NEILL | MELBOURNE, 3 AUGUST 2023 |
Application for approval of the McColl’s Operations, New South Wales Dairy Transport Agreement 2023-2026.
An application has been made for approval of an enterprise agreement known as the McColl’s Operations, New South Wales Dairy Transport 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 Agreement is a single enterprise agreement.
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.
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. The notification time for the Agreement was before 6 June 2023. The Agreement was made after 6 June 2023.
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.
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 Transport Workers' Union of Australia (TWU) 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. The TWU support approval of the Agreement.
I observe that the following provision is likely to be inconsistent with the National Employment Standards (NES):
· Clause 4.3 - Compassionate Leave.
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.
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 10 August 2023. The nominal expiry date of the Agreement is 3 August 2026.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<AE520669 PR763998>
Annexure A
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