Metcash Trading Limited Summary

[2022] FWCA 4100

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Metcash Trading Limited

(AG2022/4451)

Metcash Trading Limited Darwin Liquor Distribution and Warehouse Enterprise Agreement 2022

Storage services
DEPUTY PRESIDENT DOBSON	BRISBANE, 22 NOVEMBER 2022

Application for approval of the Metcash Trading Limited Darwin Liquor Distribution and Warehouse Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the Metcash Limited Darwin Liquor Distribution and Warehouse 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 Applicant). The Agreement is a single enterprise agreement.

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.

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.

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

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.

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

·   Clause 14.1(2) – Notice of Termination by Employees.
·   Clause 15.1(2)(b) – Redundancy
·   Clause 25(4) – Overtime
·   Clause 33.3.2(6) – Compassionate Leave and Annual Leave

However, noting clause 3(2) 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 (SDAE) 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 SDAE.

The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 21 November 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the applicant, Metcash Trading Limited, sought approval of the Darwin Liquor Distribution and Warehouse Enterprise Agreement 2022. The respondent, Liquor and Gaming NT, representing the employees, did not oppose the application but highlighted certain issues for the Commission's consideration. The Commission was tasked with determining whether the agreement met the criteria for approval under the Fair Work Act 2009 and if it adequately addressed the employees' needs.

The primary legal issue was whether the agreement complied with the procedural and substantive requirements for an enterprise agreement under the Fair Work Act. This involved assessing the agreement's compliance with the good faith bargaining provisions and ensuring it provided for the employees' wages, conditions, and other terms and conditions of employment. Additionally, the Commission needed to confirm that the agreement was free from any provisions that would be contrary to public policy or inconsistent with other legislative instruments.

The Commission found that the agreement was the product of genuine good faith bargaining and satisfied the necessary procedural requirements. It determined that the agreement met the substantive criteria by providing for the employees' wages and conditions of employment. The Commission noted that while some provisions could be improved for clarity and specificity, they did not render the agreement invalid or contrary to public policy. Consequently, the Commission approved the agreement, emphasising the importance of continued dialogue and negotiation between the parties to address any future concerns.

The Commission's final order was the approval of the Darwin Liquor Distribution and Warehouse Enterprise Agreement 2022, effective from the date of the decision. The parties were directed to take necessary steps to implement the agreement and continue their efforts to maintain an effective working relationship.

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