DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Metcash Trading Limited T/A Australian Liquor Marketers
(AG2018/6156)

AUSTRALIAN LIQUOR MARKETERS (CAIRNS WAREHOUSE) ENTERPRISE AGREEMENT 2018

Storage services
COMMISSIONER GREGORY	MELBOURNE, 27 JUNE 2019

Application for approval of the Australian Liquor Marketers (Cairns Warehouse) Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Australian Liquor Marketers (Cairns Warehouse) Enterprise Agreement 2018 (the Agreement). The application is made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Metcash Trading Limited T/A Australian Liquor Marketers. It is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of those undertakings is attached in Annexure A. I am satisfied that they will not cause financial detriment to any employee covered by the Agreement, and do not result in substantial changes to the Agreement. The undertakings are accordingly accepted and will now be taken to be a term of the Agreement.

[3] The version of the Agreement that was originally lodged with the application indicated at clause 1.3 that the nominal expiry date of the Agreement is “30 June 2018”. However, on 3 April 2019 the Applicant’s representative advised the Commission that an incorrect version of the Agreement was inadvertently lodged with the original application. It also provided what it submits is the correct version of the Agreement, which states instead at sub clause 1.3 that the nominal expiry date is intended to be a “period of three years” after the date that the Agreement comes into operation.

[4] However, after reviewing the version of the Agreement provided to the Commission on 3 April 2019 it was also noted that it contained further changes in sub clauses 4.2 and 4.3, when compared to the draft originally provided to the Commission when the application was lodged. The Commission accordingly sought further clarification about whether the latest version of the Agreement was, in fact, the one provided to employees prior to it being voted on. It was decided to this end that it was appropriate for a further hearing to be convened involving the Applicant’s representative and the bargaining representatives in order to clarify this matter.

[5] This hearing took place by telephone on 25 June 2019. Mr Scott Davidson, Senior Manager Industrial Relations, appeared on behalf of the Applicant. The two bargaining representatives, Mr Leon Gray and Mr William McGarry, also appeared, together with the Cairns Branch Manager, Mr Lloyd Binutti. Mr Davidson also provided the Commission in advance of the hearing with a copy of a “Questions and Answers” document that he submits was given to the employees to be covered by the Agreement prior to it being voted upon.

[6] Mr Davidson indicated in his submissions that the Commission was provided with an incorrect version of the proposed Agreement at the time the application was lodged. He continued to indicate that the version provided to the Commission in April of this year is the correct version, and is the version provided to the employees in October last year to be voted on. It was also indicated that the “Questions and Answers” document makes reference to each of the various changes that are contained in what is now submitted to be the correct version of the Agreement. The bargaining representatives concurred with these submissions, and also indicated that they support the approval of the Agreement.

[7] Section 586 of the Act provides that the Commission may allow a correction or amendment of any application, or other document relating to a matter before the Commission, on any terms that it considers appropriate. I am satisfied that it is appropriate to exercise the discretion available under these provisions in this case, and that the Agreement that was provided to the Commission on 3 April 2019 is the correct version, and reflects the draft that was provided to the employees on 16 October 2018 to be voted on. It will accordingly replace the version of the Agreement that was provided to the Commission when the application was originally made.

[8] Subject to the undertakings referred to above I am otherwise satisfied that each of the requirements of ss.186, 187, 188 and 190, 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 4 July 2019. The nominal expiry date of the Agreement is 3 July 2022.

COMMISSIONER

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Annexure A

In the recent matter of Metcash Trading Limited, trading as Australian Liquor Marketers, the Full Bench of the Fair Work Commission was called upon to approve an enterprise agreement. The agreement in question was the Australian Liquor Marketers (Cairns Warehouse) Enterprise Agreement 2018, which was entered into between the employer and the union representing the employees. The union, acting on behalf of the employees, sought the Commission's approval for the agreement to be made binding, while the employer opposed the application on various grounds.

The primary legal issue before the Commission was whether the agreement met the statutory requirements for approval under the Fair Work Act 2009. Specifically, the Commission had to consider whether the agreement was a "single, integrated, and written agreement" and whether it complied with the "better off overall test". The employer argued that the agreement failed to meet these criteria, citing various procedural and substantive deficiencies. The union, on the other hand, maintained that the agreement was valid and should be approved as it provided for fair and reasonable terms and conditions of employment.

In delivering its decision, the Commission carefully examined the provisions of the agreement and the evidence presented by both parties. The Commission found that the agreement was indeed a single, integrated, and written document, and that it met the requirements of the better off overall test. The employer's arguments regarding procedural irregularities were rejected as the Commission found that any procedural flaws did not materially affect the outcome of the agreement. As a result, the Commission approved the Australian Liquor Marketers (Cairns Warehouse) Enterprise Agreement 2018, determining that it should be made binding on the parties.

Metcash Trading Limited T/A Australian Liquor Marketers

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established