NewCold Melbourne Pty Ltd

[2025] FWCA 262

[2025] FWCA 262

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

NewCold Melbourne Pty Ltd

(AG2025/3)

NEWCOLD MELBOURNE MAINTENANCE AGREEMENT 2024

Storage services
COMMISSIONER REDFORD	MELBOURNE, 23 JANUARY 2025

Application for approval of the NewCold Melbourne Maintenance Agreement 2024

1. An application has been made for approval of an enterprise agreement known as the NewCold Melbourne Maintenance Agreement 2024 (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 Pty Ltd (Newcold). The Agreement is a single enterprise agreement.

1. The Agreement covers NewCold and a related employer, NewCold Melbourne No 2 Pty Ltd. Having been provided with supporting documentation about the relationship of these two entities, I am satisfied they are related employers within the meaning of s 172(5A) of the Act.

Note of Employee Representational Rights

1. The Notice of Employee Representational Rights (NERR) distributed to employees by NewCold was not in the prescribed form, as the pre-reform version has been used. Nevertheless, in the circumstances, I am satisfied that this constitutes a minor procedural or technical error for the purposes of s 188(5) of the Act. Further, I am satisfied that the employees covered by the agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188 of the Act.

Interaction with the National Employment Standards

1. Clause 7.1 of the Agreement provides that it will be read and interpreted in conjunction with the National Employment Standards (NES), and that where there is an inconsistency between this Agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency (NES precedence clause). On this basis, I am satisfied that the apparent inconsistencies with the NES outlined below do not prevent the approval of this agreement:

a.Clause 38.9 of the Agreement provides that the ordinary hours of work for 12-hour shift workers will be an average of 42 hours per week. This provision may operate inconsistently with s.62(1) of the Act which provides that an employer must not request or require an employee to work more than 38 ordinary hours of work in a week unless the additional hours are reasonable. On the basis of the NES precedence clause, s 62(1) will prevail such that the employers covered by this agreement must not request or require an employee to work more than 38 hours of work in a week unless the additional hours are reasonable.

1. Clause 46.6 of the Agreement appears to provide that that the employer and “employees” may agree to substitute a public holiday for another day. Section 115(3) of the Act provides that the substitution of a public holiday with another day may only occur by agreement between the employer and an employee, rather than multiple employees. To the extent that this provision is inconsistent with s 15(3) of the Act when read in conjunction with the NES precedence this provision will have no effect to the extent of any such inconsistency.

Consideration

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.

1. The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia - Electrical, Energy and Services Division - Victorian Divisional Branch Union (CEPU) 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 CEPU.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate 7 days after approval.

COMMISSIONER

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