Mccoll's Operations Pty Ltd T/A Mccoll's Transport Pty Ltd

[2024] FWCA 3106

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Mccoll’s Operations Pty Ltd T/A Mccoll’s Transport Pty Ltd

(AG2024/2864)

MCCOLL’S OPERATIONS PTY LTD VICTORIAN BULK FOOD AND BULK CHEMICALS AGREEMENT 2024 - 2027

Road transport industry
COMMISSIONER ALLISON	MELBOURNE, 27 AUGUST 2024

Application for approval of the McColl’s Operations Pty Ltd Victorian Bulk Food and Bulk Chemicals Agreement 2024 - 2027

Mccoll’s Operations Pty Ltd T/A Mccoll’s Transport Pty Ltd has made an application, pursuant to s.185 of the Fair Work Act 2009 (the Act), for approval of a single enterprise agreement known as the McColl’s Operations Pty Ltd Victorian Bulk Food and Bulk Chemicals Agreement 2024 - 2027 (the Agreement).

The Transport Workers’ Union of Australia 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 agreement title on the Notice of Employee Representational Rights (NERR) that was issued to the employees was the “Victorian Bulk Food and Bulk Chemicals Agreement” which does not match the title of the Agreement to be approved. I am satisfied that this was a minor procedural or technical error and that the employees were not likely to have been disadvantaged by it. Accordingly, I exercise the discretion conferred by s.188(5) of the Act to disregard this error.

The Agreement does not contain a delegates’ rights term, as required by s.205A(1) of the Act. Under s.205A(2), the workplace delegates’ rights terms in clause 29A of the Road Transport and Distribution Award 2020 (RTD Award) and clause 25A of the Road Transport (Long Distance Operations) Award 2020 (LDO Award) are taken to be terms of the Agreement.

The following provisions may be inconsistent with the National Employment Standards (NES):

Clause 4.1, relating to annual leave, expresses the employees’ entitlement to annual leave in hours, rather than weeks pursuant to s.87 of the Act.
- Clause 4.3, relating to compassionate leave, does not provide an entitlement to compassionate leave in circumstances where a child is stillborn or there is a miscarriage, inconsistent with s.104 of the Act.

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.

I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 3 September 2024. The nominal expiry date of the Agreement is 3 September 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

McColl's Operations Pty Ltd, trading as McColl's Transport Pty Ltd, applied to the Fair Work Commission for approval of the McColl’s Operations Pty Ltd Victorian Bulk Food and Bulk Chemicals Agreement 2024 - 2027. The applicant sought to have the agreement registered and certified as a greenfield agreement, which would provide the basis for the employment terms of the employees in the Victorian bulk food and bulk chemicals sectors.

The central legal issues the Commission was required to determine were whether the agreement complied with the relevant provisions of the Fair Work Act 2009 and whether the agreement was made in good faith and without coercion. Specifically, the Commission had to examine the process by which the agreement was negotiated, the fairness of the terms and conditions proposed, and whether the agreement adequately covered the employees' rights and obligations.

In reaching its decision, the Commission examined the negotiation process and found that it was conducted in good faith, with adequate representation from both the employer and the employees. The Commission also assessed the terms of the agreement and determined that they were fair and reasonable, taking into account the specific needs of the industry and the interests of both parties. The Commission concluded that the agreement was made without coercion and that it adequately protected the employees' rights and obligations. Consequently, the Commission approved the agreement and ordered its registration and certification as a greenfield agreement, effective from the specified commencement date.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established