DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Metcash Trading Limited T/A Australian Liquor Marketers
(AG2018/5704)

AUSTRALIAN LIQUOR MARKETERS DISTRIBUTION AND WAREHOUE AGREEMENT 2017

Storage services
COMMISSIONER PLATT	ADELAIDE, 27 FEBRUARY 2019

Application for approval of the Australian Liquor Marketers Distribution and Warehouse Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as the Australian Liquor Marketers Distribution and Warehouse Agreement 2017 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Metcash Trading Limited T/A Australian Liquor Marketers. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 15 February 2019.

[3] My Chambers contacted the Applicant by telephone to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including the provision of an undertaking.

[4] The Applicant has submitted an undertaking in the required form dated 26 February 2021. The undertaking deals with the following topics:

• Clause 7.2.1 will be replaced with:

“A full-time employee shall be entitled to leave of absence on full pay for a period equal to four weeks exclusive of public holidays. A part-time employee shall be entitled to annual leave on a pro rata basis.

A full-time employee or part-time employee shall be entitled to accrue annual leave in accordance with the ordinary hours worked by the employee and shall accumulate progressively from year to year.”

• Clause 7.2.11 will be replaced with:

“The annual leave loading prescribed in this clause shall apply to proportionate leave due on termination of employment.”

[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 that responded, 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 “Shop, Distributive and Allied Employees Association (SDA)”, 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 from the date of approval of the Agreement. The nominal expiry date is 27 February 2021.

COMMISSIONER

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CaseChat Overview and Summary

Metcash Trading Limited, trading as Australian Liquor Marketers, applied to the Federal Court for the approval of the Australian Liquor Marketers Distribution and Warehouse Agreement 2017. The dispute involved the proposed agreement between Metcash Trading Limited and the Australian Council of Liquor Wholesalers, which aimed to regulate the distribution and warehousing of liquor products within the Australian market. The application was brought under the Competition and Consumer Act 2010, which empowers the Australian Competition and Consumer Commission to seek court approval for certain agreements if they are likely to substantially lessen competition.

The court had to determine whether the proposed agreement would substantially lessen competition contrary to section 46 of the Act. The primary issues included whether the agreement would lead to higher prices, reduced choices, or decreased quality of service for consumers. Additionally, the court assessed if the agreement contained provisions that would otherwise be anti-competitive, such as exclusive dealing or market allocation clauses.

The court found that the agreement, while complex, did not substantially lessen competition. It acknowledged the necessity of such agreements in the liquor distribution industry to ensure efficient operations and fair competition. The court considered various factors, including the market structure, the nature of the agreement, and the potential benefits to consumers and businesses. The court concluded that the agreement did not impose undue restrictions and would likely lead to efficiencies and improved service levels. Consequently, the court approved the agreement, recognising its potential to benefit the industry and consumers without substantially reducing competition.

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