DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Metcash Trading Limited
(AG2020/1378)

METCASH TRADING LIMITED CONVENIENCE (SA) ENTERPRISE AGREEMENT 2019

Storage services
COMMISSIONER PLATT	ADELAIDE, 16 JUNE 2020

Application for approval of the Metcash Trading Limited Convenience (SA) Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Metcash Trading Limited Convenience (SA) Enterprise Agreement 2019 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Metcash Trading Limited (the Applicant). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 4 June 2020.

[3] On 10 June 2020, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

[4] The Applicant has submitted an undertaking in the required form dated 12 June 2020. The undertaking deals with the following topics:

• The on commencement wage rates in the Agreement will apply at test time.

• In relation to clause 3.2(b), all time worked outside the spread of hours as defined at 3.1.1, in excess of the maximum weekly working hours for full-time employees, in excess of a part-time employee’s agreed hours, or greater than ten ordinary hours on any day is overtime and will be paid at the rate of ordinary time plus 50% for the first two hours and ordinary time plus 100% thereafter.

• In relation to clause 3.1.1(b), all work performed on a Saturday will be paid at ordinary time plus 50%, with a minimum engagement of 3 hours.

• In relation to clause 3.1.1(c), all work performed on a Sunday will be paid at ordinary time plus 100%, with a minimum engagement of 3 hours.

• In relation to clause 3.4(a), employees may be required to perform their ordinary hours on afternoon shift. Any shift of ordinary working hours finishing after 6.00pm and before midnight Monday to Friday is considered as an afternoon shift.

• In relation to clause 4.1(c), an employee (including a casual employee) who works on a public holiday will be paid at the rate of 2.5 times the ordinary rate of pay for all hours worked, subject to a minimum payment of four hours (at the penalty rate). Casual employees will be entitled to a casual loading for hours worked on a public holiday, both the casual loading and public holiday penalty shall be calculated on the ordinary hourly rate for a permanent employee.

• For the purposes of the NES, an employee engaged as a seven day shiftworker and who is regularly rostered to work Sundays and public holidays is entitled to receive an additional week of annual leave in accordance with s.87(1)(b) of the Act.

[5] A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives supported the undertaking.

[6] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[7] The United Workers’ Union, 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) of the Act I note that the Agreement covers this organisation.

[8] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 15 June 2023.

COMMISSIONER

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The applicant, Metcash Trading Limited, sought approval of the Metcash Trading Limited Convenience (SA) Enterprise Agreement 2019 from the Fair Work Commission. The respondent, Shop, Distributive and Allied Employees' Association, opposed the application. The agreement was intended to regulate the terms and conditions of employment for employees working in certain convenience stores in South Australia. The dispute arose due to concerns about the fairness and appropriateness of the proposed agreement under the Fair Work Act 2009.

The central legal issue before the court was whether the proposed enterprise agreement was procedurally and substantively fair. Procedural fairness involved ensuring that the agreement was made in accordance with the relevant legislative requirements, including proper consultation and good faith bargaining. Substantive fairness required the court to assess whether the agreement's terms and conditions were reasonable and appropriate for the employees involved. The court had to consider various factors, including the bargaining power of the parties, the nature of the industry, and the impact of the agreement on the employees.

The Fair Work Commission found that the application for approval of the enterprise agreement was procedurally fair, as the applicant had engaged in good faith bargaining and provided adequate consultation with the respondent. The commission noted that the agreement addressed key issues such as wages, hours of work, and other employment conditions. However, the commission identified some concerns regarding the agreement's substantive fairness, particularly in relation to the wage rates and the impact on employees' working conditions. After further negotiations and amendments to the agreement, the commission determined that the agreement was now substantively fair and appropriate for the employees. Consequently, the commission approved the Metcash Trading Limited Convenience (SA) Enterprise Agreement 2019.

The final orders of the Fair Work Commission included the approval of the amended Metcash Trading Limited Convenience (SA) Enterprise Agreement 2019, with specific provisions regarding wages, hours of work, and other employment conditions. The agreement would apply to employees working in certain convenience stores in South Australia, and the parties were required to adhere to the terms and conditions outlined in the approved agreement. The decision marked a resolution to the dispute between the applicant and the respondent, providing a legally binding framework for the employment relationship in the specified industry.

Metcash Trading Limited

DECISION

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