Metcash Trading Limited T/A Metcash Trading Limited Australasia

[2023] FWCA 2455

[2023] FWCA 2455

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Metcash Trading Limited T/A Metcash Trading Limited Australasia

(AG2023/2451)

METCASH TRADING LIMITED SOUTH AUSTRALIA FOOD & LIQUOR ENTERPRISE AGREEMENT 2023

Storage services
DEPUTY PRESIDENT WRIGHT	SYDNEY, 7 AUGUST 2023

Application for approval of the Metcash Trading Limited South Australia Food & Liquor Enterprise Agreement 2023

Introduction

1. Metcash Trading Limited (the Employer) has made an application for approval of an enterprise agreement known as the Metcash Trading Limited South Australia Food & Liquor Enterprise Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Transitional arrangements under the Secure Jobs, Better Pay amendment

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023.

1. Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for the Agreement was before 6 June 2023.

1. Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The better off overall test provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the agreement was made before 6 June 2023. The Agreement was made on 12 July 2023.

Regulation 2.06 Requirements

1. The signature page of the Agreement 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 allow an amendment of a document relating to a matter before the FWC and do so pursuant to s.586(a) of the Act.

NES precedence term in Clause 1.2(b) of the Agreement

1. Clause 4.5 of the Agreement provides for compassionate leave, but does not include leave for stillbirth or miscarriage which may be inconsistent with the National Employment Standards (NES). I note that in accordance with the NES precedence term in Clause 1.2(b) of the Agreement, this clause will be read and interpreted in conjunction with the NES.

Section 190 Undertakings

1. The employer 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. The undertakings are taken to be a term of the Agreement.

Section 186, 187, 188 and 190

1. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

Section 183 Bargaining Representatives

1. The United Workers’ Union (UWU) and the Shop, Distributive and Allied Employees Association (SDA) being bargaining representatives for the Agreement, has given notice under s.183 of the Act that they want the Agreement to cover them.

1. In accordance with s.201(2), I note that the Agreement covers the UWU and the SDA.

Approval

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 14 August 2023. The nominal expiry date of the Agreement is 1 March 2026.

DEPUTY PRESIDENT

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