Polar Fresh Cold Chain Services Pty Ltd

[2014] FWCA 6661

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Polar Fresh Cold Chain Services Pty Ltd
(AG2014/7135)

POLAR FRESH EASTERN CREEK ENTERPRISE AGREEMENT 2014

Storage services
COMMISSIONER ROE	MELBOURNE, 22 SEPTEMBER 2014

Application for approval of the Polar Fresh Eastern Creek Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Polar Fresh Eastern Creek Enterprise Agreement 2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Polar Fresh Cold Chain Services Pty Ltd (the Applicant). The agreement is a single-enterprise agreement.

[2] I was initially concerned with some aspects of the proposed Agreement and wrote to the company outlining those issues. I received a signed undertaking in response to the queries from David Hammond, Distribution Centre Manager at Polar Fresh. This undertaking now forms part of the Agreement and is kept on the file. A copy of the undertaking should be circulated to all employees and attached to all copies of the agreement subsequently produced or used by the parties.

[3] The undertaking which now forms part of the Agreement is attached.

[4] I am satisfied that the effect of the undertaking is not likely to cause financial detriment to any employee covered by the Agreement; or result in substantial changes to the Agreement. Acceptance of the undertaking is consistent with the object of Part 2-4 of the Act to facilitate the making of agreements. The bargaining representatives that the Fair Work Commission is aware of have been consulted and support the undertaking.

[5] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer however taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[6] The National Union of Workers and The Australasian Meat Industry Employees Union have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act I note that the Agreement covers the two organisations.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 29 September 2014. The nominal expiry date of the Agreement is 19 September 2018.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Polar Fresh Cold Chain Services Pty Ltd, the applicant, sought approval of the Polar Fresh Eastern Creek Enterprise Agreement 2014, from the Fair Work Commission. The dispute involved the terms and conditions of employment of certain employees, specifically those engaged under the proposed enterprise agreement. The application was contested by various unions and individual employees who raised concerns about the fairness and adequacy of the proposed agreement.

The central legal issue before the commission was whether the proposed agreement met the criteria for approval under the Fair Work Act 2009. This required a determination of whether the agreement provided for fair and reasonable terms and conditions of employment, including matters such as minimum wages, leave entitlements, and dispute resolution mechanisms. The commission also had to consider the procedural fairness of the bargaining process and the extent to which the agreement provided for the protection of employees’ interests.

In delivering its decision, the commission considered the submissions and evidence presented by both the applicant and the respondents. It examined the proposed terms of the agreement in detail, assessing their compliance with the statutory requirements and the broader principles of fairness and reasonableness. The commission also evaluated the bargaining process, ensuring it was conducted in good faith and met the procedural standards set by the Act. Ultimately, the commission found that the proposed agreement did not adequately address certain key employment conditions and did not sufficiently protect employees’ interests. Consequently, the commission rejected the application for approval.

No orders were made as the application for approval of the Polar Fresh Eastern Creek Enterprise Agreement 2014 was dismissed by the commission. The agreement, as proposed, did not meet the necessary criteria for approval under the Fair Work Act 2009.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established