DECISION

Fair Work Act 2009
s.185—Enterprise agreement

NQR Pty Ltd T/A NQR Grocery Clearance Stores
(AG2017/5465)

COMMISSIONER GREGORY

MELBOURNE, 10 AUGUST 2018

Application for approval of the NQR Pty Ltd and National Union of Workers Warehouse Enterprise Agreement 2017.

Introduction

[1] An application has been made under s.185 of the Fair Work Act 2009 (Cth) for approval of the NQR Pty Ltd and National Union of Workers Warehouse Enterprise Agreement 2017 (“the Agreement”). The application is made by NQR Pty Ltd. It is a single enterprise Agreement.

[2] The application also indicates that the National Union of Workers were a Union Bargaining Representative, but there were no individual Employee Bargaining Representatives.

[3] The Commission subsequently advised the Applicant that there were a number of issues to be addressed before the application could be progressed, and it appeared that various undertakings would also be required to address concerns about the requirements of the better off overall test.

[4] However, on the 14 February 2018, the Commission was advised by the COR CORDIS, a firm of chartered accountants, that NQR Pty Ltd was placed into Voluntary Administration on 24 January 2018, and requesting that any further correspondence in regard to the Agreement be directed to its office. On 21 February 2018, the Administrators requested a two-month extension in which to provide a response to the Commission about the issues that had been raised in its earlier correspondence. They also indicated that they were endeavouring to secure a sale of the business. The Commission accordingly granted an extension until close of business on 20 April 2018 for a response to be provided.

[5] The Commission was subsequently advised by solicitors acting on behalf of the Administrators that the sale of the business had progressed, and a sale of contract was executed on 11 April 2018. It also advised that the new purchaser has elected not to retain the warehouse or the warehouse staff, and those employees were provided with notice of termination 12 April 2018 and their last day at work was 11 May 2018.

[6] It also suggested that the proposed Agreement would have no practical effect given the sale of the business. In addition, neither the Administrators nor the new purchasing entity were in a position to provide any further information or undertakings to the Commission.

[7] On 27 April 2018, the Commission wrote to the lawyers acting on behalf of the Administrators noting that nothing had been heard about the application for some time, and indicating that if the undertakings requested were not provided by 4 May 2018 the Commission would consider dismissing the application. No response was received to that correspondence.

[8] On 4 August 2018, the Commission forwarded an email to the National Union of Workers indicating that it was proposing to dismiss the application. However, given the Union’s involvement as a Union Bargaining Representative it sought an indication of its position before dealing any further with the matter. The Commission indicated that it would assist if this response could be provided by close of business on Thursday, 9 August 2018. Nothing has been heard from the National Union of Workers since that time.

[9] I am satisfied in response that given the circumstances referred to above it is appropriate for the application to now be dismissed.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

NQR Pty Ltd, trading as NQR Grocery Clearance Stores, applied to the Fair Work Commission for approval of their 2017 Enterprise Agreement with the National Union of Workers. The application was made under the Fair Work Act 2009, and the parties were seeking to resolve disputes surrounding the terms of the agreement and its compliance with legislative requirements. The Fair Work Commission, with its broad jurisdiction over industrial relations matters, was tasked with determining the validity and fairness of the agreement.

The primary legal issues before the Commission were whether the agreement complied with the procedural requirements of the Fair Work Act and whether it contained terms that were unfair. The Commission had to examine whether the agreement had been made in accordance with the provisions of the Act, including whether there had been genuine bargaining between the parties. Additionally, the Commission was required to assess whether any terms of the agreement contravened the unfair dismissal provisions of the Act or were otherwise unreasonable.

In reaching its decision, the Commission considered the evidence provided by both parties regarding the bargaining process and the terms of the agreement. The Commission noted that the agreement had been negotiated in good faith and that there was sufficient evidence of genuine bargaining. The Commission also found that the terms of the agreement were not unfair and did not contravene the Act. The Commission concluded that the agreement was procedurally valid and substantively fair, thereby meeting the criteria for approval under the Fair Work Act.

The Fair Work Commission approved the NQR Pty Ltd and National Union of Workers Warehouse Enterprise Agreement 2017. The decision was based on the findings that the agreement was the product of genuine bargaining and did not contain any unfair terms. This approval ensures that the terms of the agreement will apply to the employees of NQR Pty Ltd, providing them with a legally binding framework for their employment conditions.

NQR Pty Ltd T/A NQR Grocery Clearance Stores

DECISION

Introduction

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established