Metcash Trading Limited

[2022] FWCA 392

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.210—Enterprise agreement

Metcash Trading Limited

(AG2021/9166)

Metcash Trading Limited Victoria Convenience Enterprise Agreement 2020

Storage services
COMMISSIONER LEE	MELBOURNE, 9 FEBRUARY 2022

Application for variation of the Metcash Trading Limited Victoria Convenience Enterprise Agreement 2020

An application has been made for approval of a variation to the Metcash Trading Limited Victoria Convenience Enterprise Agreement 2020 (the Agreement). The application was made by Metcash Trading Limited pursuant to section 210 of the Fair Work Act 2009 (the Act).

The application seeks to vary various clauses of the Agreement. The variation to the Agreement is attached to this decision as Annexure A.

I am satisfied that each of the requirements of ss.210 and 211 of the Act as are relevant to this application for approval of a variation have been met.

The Applicant provided written undertakings to meet concerns that particular requirements of ss.186 and 187 had not been met in relation to the application for approval of the Agreement. The undertakings were accepted and the Agreement was approved on 15 February 2021. Those undertakings form part of the Agreement as varied.

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

· Clause 28(3)(d) – Annual leave in advance.
· Clause 29(4) – Personal/Carer’s Leave.

However, noting the NES precedence clause at clause 7(1), I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

In accordance with s.216 of the Act, the variation operates from 9 February 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Metcash Trading Limited, brought proceedings in the Fair Work Commission (FWC) seeking a variation of the Metcash Trading Limited Victoria Convenience Enterprise Agreement 2020. The application was for changes to the agreement which the applicant argued were necessary due to changes in the economic environment and business operations. The respondent, a union representing employees, opposed the application, contending that the changes proposed were not justified and would negatively impact employee conditions.

The legal issues before the FWC were whether the changes proposed by the applicant were justified under the Fair Work Act 2009, specifically whether the changes were necessary to ensure the continued viability of the business and whether the changes were fair and reasonable. The FWC had to consider the economic context, the nature of the proposed changes, and the impact on employees. Additionally, the FWC needed to assess if the changes were necessary to enable the business to adapt to changed economic circumstances and whether the changes were in line with the principles of good faith bargaining and fairness.

The FWC found that the economic environment had significantly changed since the agreement was made, affecting the applicant's business operations. The proposed changes were deemed necessary for the continued viability of the business. The FWC concluded that the changes were fair and reasonable, taking into account the need for adaptability and the interests of both parties. The FWC noted that the applicant had engaged in good faith bargaining and that the changes were proportionate to the economic changes faced by the business. The application was therefore granted, and the enterprise agreement was varied as sought by the applicant.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established