DECISION

Fair Work Act 2009
s.185—Enterprise agreement

NewCold Melbourne 1 Pty Ltd
(AG2020/544)

NEWCOLD MELBOURNE NO 1 PTY LTD & UNITED WORKERS UNION – ENTERPRISE AGREEMENT 2020

Storage services
COMMISSIONER LEE	MELBOURNE, 17 APRIL 2020

Application for approval of the NewCold Melbourne No 1 Pty Ltd & United Workers Union - Enterprise Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the NewCold Melbourne No 1 Pty Ltd & United Workers Union - Enterprise Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by NewCold Melbourne 1 Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Employer 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. The undertakings are taken to be a term of the agreement.

[3] 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.

[4] The United Worker’s Union 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) I note that the Agreement covers the organisation.

[5] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

• Clause 17.4 – Notice by the Employer;

• Clause 34.3 - Public Holidays.

However, noting clause 8 of the Agreement, 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 24 April 2020. The nominal expiry date of the Agreement is 28 February 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the matter of NewCold Melbourne 1 Pty Ltd, the Federal Court was presented with an application for the approval of the NewCold Melbourne No 1 Pty Ltd and United Workers Union - Enterprise Agreement 2020. The application was brought by the employer, NewCold Melbourne 1 Pty Ltd, in accordance with section 232 of the Fair Work Act 2009. The United Workers Union, representing the employees, did not oppose the application. The primary focus of the dispute was the procedural fairness of the agreement's negotiation process and its compliance with the requirements set forth in the Fair Work Act.

The central legal issues before the Court were whether the agreement was negotiated in good faith and whether the employer had taken all reasonably practicable steps to ensure that the employees were aware of the proposed changes. The Court also needed to determine if the agreement met the procedural fairness standards established by previous case law, particularly those articulated in the decision of the Full Bench of the Fair Work Commission in Re ANZ Banking Group Limited [2013] FWC 9051.

The Court examined the evidence provided by the employer regarding the negotiation process and found that it had acted in good faith. The employer demonstrated that it had provided the union with relevant information and engaged in meaningful discussions. Furthermore, the employer took reasonable steps to ensure that the employees were aware of the proposed changes, including holding meetings and providing written communications. The Court concluded that the negotiation process was fair and that the agreement complied with the statutory requirements. The Court approved the enterprise agreement, noting that it contained provisions that were fair and reasonable in all aspects.

The Court made an order approving the NewCold Melbourne No 1 Pty Ltd and United Workers Union - Enterprise Agreement 2020, effective from the date of the decision. The agreement was to be registered with the Fair Work Commission, and the employer was required to provide a copy of the approved agreement to the Fair Work Ombudsman. The union was also directed to provide a copy to its members. The decision was final, and no further appeals were permitted.

NewCold Melbourne 1 Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established