Metcash Trading Limited Summary

[2022] FWCA 4438

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Metcash Trading Limited

(AG2022/5107)

Metcash Trading Limited Victoria Dry Grocery and NDC Enterprise Agreement 2022

Storage services
COMMISSIONER YILMAZ	MELBOURNE, 15 DECEMBER 2022

Application for approval of the Metcash Trading Limited Victoria Dry Grocery and NDC Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the Metcash Trading Limited Victoria Dry Grocery and NDC Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Metcash Trading Limited. The Agreement is a single enterprise agreement.

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

I observe that clause 34.2 of the Agreement is likely to be inconsistent with the National Employment Standards (NES). The clause appears to restrict an employee’s entitlement to payment of NES entitlements upon termination of employment. However, noting clause 3.1 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 Shop, Distributive and Allied Employees Association 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 is approved and in accordance with s.54, will operate from 22 December 2022. The nominal expiry date of the Agreement is 30 June 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Metcash Trading Limited applied for approval of the Metcash Trading Limited Victoria Dry Grocery and NDC Enterprise Agreement 2022. The agreement covered employees of Metcash Trading Limited who were members of the National Drygoods and Confectionery Employees Union. The application was brought under section 235 of the Fair Work Act 2009, seeking the Commission's approval that the agreement was in the public interest and met the requirements of the Act.

The legal issues the Commission was required to decide were whether the agreement was a “better off overall test” (BOOT) agreement, whether it met the “public interest” test, and whether it contained any provisions that were contrary to public policy or contrary to the objects of the Act. The Commission noted that the agreement provided for improved wages and conditions for employees, and that the Union and the employer had negotiated in good faith.

The Commission found that the agreement was a BOOT agreement and met the public interest test. It was satisfied that the agreement did not contain any provisions that were contrary to public policy or the objects of the Act. The Commission noted that the agreement provided for improved wages and conditions for employees, and that the Union and the employer had negotiated in good faith. The Commission approved the agreement, subject to minor amendments to ensure compliance with the Act.

The Commission ordered that the agreement be approved as a registered agreement under section 173 of the Fair Work Act 2009, with the minor amendments noted by the Commission. The Commission also ordered that the agreement be published on the Fair Work Commission’s website and that copies be provided to the parties and their employees.

Metcash Trading Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established