Metcash Trading Limited

[2024] FWCA 496

[2024] FWCA 496

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Metcash Trading Limited

(AG2023/5526)

METCASH AUSTRALIAN LIQUOR MARKETERS VICTORIA ENTERPRISE AGREEMENT 2023

Storage services
COMMISSIONER PERICA	MELBOURNE, 5 FEBRUARY 2024

Metcash Australian Liquor Marketers Victoria Enterprise Agreement 2023

1. An application has been made for approval of an enterprise agreement known as the Metcash Australian Liquor Marketers Victoria Enterprise Agreement 2023 (the Agreement). The application is made under section 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

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

1. Under the transitional amendments made by Part 14 of Schedule 1 to the Amending Act, the 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 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 this Agreement was 5 July 2023. It follows the Amending Act genuine agreement provisions apply.

1. Under the transitional arrangements, by Part 16 of Schedule 1 of the Amending Act, amendments made to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. This Agreement was made on 14 December 2023. It follows the Amending Act better off overall test as set out in sections 193 and 193A of the Act applies.

1. The Employer has provided written undertakings. A copy of these undertakings is attached in Annexure A. I am satisfied 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. I therefore note the undertakings are taken to be terms of the Agreement under section 201(3) of the Act.

1. I note that clauses 23(e), 26.1(c) and 26.2(c) may be inconsistent with the National Employment Standards. However, noting the third undertaking provided by the Employer, I am satisfied the more beneficial entitlements of the National Employment Standards will prevail where there is an inconsistency with the Agreement. 

1. Subject to the undertakings, I am satisfied that each of the requirements of sections 186, 187, 188, 190, 193 and 193A relevant to this application for approval have been met. The Agreement does not cover all the employees of the employer, however, taking into account the factors in sections 186(3) and (3A), I am satisfied that the group of employees was fairly chosen.

1. The Shop, Distributive and Allied Employees Association being a bargaining representative for the Agreement has given notice under section 183 of the Act that it wants the Agreement to cover it. I therefore note the Agreement covers the organisation under section 201(2) of the Act.

1. The Agreement is approved today 5 February 2024. It will operate from 12 February 2024 as required by section 54 of the Act. The nominal expiry date is 11 August 2026.

COMMISSIONER

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Annexure A