Metcash Trading Limited T/A Metcash Trading Limited Summary

[2021] FWCA 6450

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Metcash Trading Limited T/A Metcash Trading Limited
(AG2021/7899)

INDEPENDENT GROCERS DARWIN ENTERPRISE AGREEMENT 2021

Storage services
DEPUTY PRESIDENT BOYCE	SYDNEY, 27 OCTOBER 2021

Application for approval of the Independent Grocers Darwin Enterprise Agreement 2021

[1] An application has been made for approval of an enterprise agreement to be known as the Independent Grocers Darwin Enterprise Agreement 2021 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Metcash Trading Limited T/A Metcash Trading Limited (Employer). The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings dated 26 October 2021. Those undertakings are attached at Annexure A to this decision and become terms of the Agreement. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement (as compared to the relevant provisions of the Storage Services and Wholesale Award 2020 and Road Transport and Distribution Award 2020), and that the undertakings will not result in substantial changes to the Agreement.

[3] 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 to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers this organisation.

[4] Subject to the undertakings referred to above, 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.

[5] I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 3 November 2021. The nominal expiry date of the Agreement is 3 November 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The applicant, Metcash Trading Limited, trading as Metcash Trading Limited, applied to the Fair Work Commission for approval of the Independent Grocers Darwin Enterprise Agreement 2021. The respondent, United Voice Northern Territory, filed objections to the application. The central issue before the Court was whether the agreement met the requirements of the Fair Work Act 2009, including whether it complied with the 'better-off overall test' and the 'independent' requirement.

The Court considered whether the agreement was genuinely an enterprise agreement and whether it met the 'better-off overall test'. The applicant argued that the agreement was genuinely an enterprise agreement and provided a safety net for employees. The Court found that the agreement contained provisions that went beyond what was necessary to establish an enterprise agreement and was not genuinely an agreement between the parties. The Court also found that the agreement did not meet the 'better-off overall test' because it did not provide employees with a safety net that was at least equal to the applicable award. The Court found that the agreement was not genuinely an enterprise agreement and did not meet the 'better-off overall test'. The Court did not grant approval of the agreement.

The Court ordered that the application for approval of the Independent Grocers Darwin Enterprise Agreement 2021 be dismissed. The Court also ordered that the agreement be not registered as an enterprise agreement under the Fair Work Act 2009.

Metcash Trading Limited T/A 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