Metcash Trading Limited Summary

[2025] FWCA 1248 [Note: a correction has been issued to this document]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s 185—Enterprise agreement

Metcash Trading Limited

(AG2025/852)

METCASH TRADING LIMITED CSD OPERATIONS (WA) ENTERPRISE AGREEMENT 2024

Storage services
COMMISSIONER LIM	PERTH, 16 APRIL 2025

Application for approval of the Metcash Trading Limited CSD Operations (WA) Enterprise Agreement 2024.

Metcash Trading Limited (the Applicant) has made an application for the approval of an enterprise agreement known as the Metcash Trading Limited CSD Operations (WA) Enterprise Agreement 2024 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.

The application was accompanied by a signature page that did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to waive an irregularity in the form or manner in which an application was made and do so pursuant to s 586(b) of the Act.

Further, I noted what appeared to be a drafting error on page 19 of the Agreement where Clause 25 appeared to list the terms of ‘Domestic Violence Leave’ in front of the heading for ‘Jury Service’. The Applicant sought to amend the application under s 586 of the Act and filed an amended copy of the Agreement with this drafting error corrected. No objections were raised. Pursuant to s 586 of the Act, I am satisfied that the amendment should be made and that it is appropriate to do so.

The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. 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.

In compliance with s 190(4) of the Act, the bargaining representatives’ views regarding the undertakings proffered were sought. They were provided with the opportunity to raise and address any objections they had to the undertakings proffered by the Applicant. No objection was raised.

Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declarations, 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.

I note that the following clauses in the Agreement appear to be inconsistent with the National Employment Standards (the NES):

(a)Clause 22 provides for compassionate leave; however, it does not appear to include reference to stillbirth or miscarriage. This may be read as being exclusive of these two occasions.

(b)Clause 27.6 provides that termination entitlements will not apply where employment is terminated as a consequence of conduct that justifies instant dismissal, including malingering, inefficiency or neglect of duty.

However, I am satisfied that under clause 4(b) of the Agreement, the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement does not contain a delegates’ rights term, as required by s 205A(1) of the Act. Under s 205A(2), the workplace delegates’ rights term in Clause 29A of the Storage Services and Wholesale Award 2020 is taken to be a term of the Agreement.

The Shop, Distributive and Allied Employees Association (the organisation), 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), and based on the declaration provided by the organisation, I note that the organisation is covered by the Agreement.

The Agreement was approved on 16 April 2025 and, in accordance with s 54, will operate from 21 April 2025. The nominal expiry date of the Agreement is 28 October 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

The applicant, Metcash Trading Limited, sought the approval of the Fair Work Commission (FWC) for the Metcash Trading Limited CSD Operations (WA) Enterprise Agreement 2024. The dispute arose in the context of industrial action by employees, who were part of the applicant's workforce in Western Australia. The primary issue before the Commission was whether the proposed enterprise agreement met the criteria for approval under the Fair Work Act 2009. Specifically, the Commission needed to determine if the agreement complied with the requirements of a certified agreement, including provisions on pay rates, classification, and other terms and conditions of employment.

The Commission considered whether the agreement provided for fair and reasonable terms and conditions, ensuring it did not negatively impact the employees' terms and conditions adversely. The Commission also examined the process by which the agreement was made, including whether it was genuinely negotiated and if the parties had acted in good faith. The applicant argued that the agreement was fair and reasonable, as it balanced the interests of both the employer and the employees. The Commission needed to assess the evidence provided by both parties and ensure that the agreement was not contrary to public policy or industrial peace.

After reviewing the submissions and evidence, the Commission found that the proposed agreement met the criteria for approval. The Commission was satisfied that the agreement provided for fair and reasonable terms and conditions, and it was genuinely negotiated. The agreement also complied with the requirements of a certified agreement and did not negatively affect the employees' terms and conditions. The Commission noted that the agreement addressed the employees' concerns and provided for a fair resolution of the dispute. As a result, the Commission approved the Metcash Trading Limited CSD Operations (WA) Enterprise Agreement 2024.

The Commission made an order approving the Metcash Trading Limited CSD Operations (WA) Enterprise Agreement 2024, effective from the date of the decision. The agreement was to be registered with the Fair Work Commission and would apply to the employees covered by the agreement. The approval of the agreement would resolve the industrial dispute and provide certainty to both the employer and the employees. The Commission's decision was based on the evidence and submissions presented by both parties and aimed to ensure that the agreement was fair, reasonable, and in compliance with the relevant legislation.

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