DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Polar Fresh Cold Chain Services Pty Ltd
(AG2016/5297)

POLAR FRESH VICTORIA AND NATIONAL UNION OF WORKERS ENTERPRISE AGREEMENT 2016

Storage services
COMMISSIONER LEE	MELBOURNE, 22 SEPTEMBER 2016

Application for approval of the Polar Fresh Victoria and National Union of Workers Enterprise Agreement 2016.

[1] An application has been made for approval of an enterprise agreement known as the Polar Fresh Victoria and National Union of Workers Enterprise Agreement 2016 (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 Agreement is a single enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[3] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[4] The National Union of Workers 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] The Agreement was approved on 22 September 2016 and, in accordance with s.54, will operate from 28 September 2016. The nominal expiry date of the Agreement is 30 April 2019.

COMMISSIONER

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CaseChat Overview and Summary

Polar Fresh Cold Chain Services Pty Ltd sought approval for the Polar Fresh Victoria and National Union of Workers Enterprise Agreement 2016, before the Fair Work Commission. The agreement in question was entered into between Polar Fresh and the union, with the aim of regulating employment terms and conditions for workers in the company's Victoria branch. The application was contested by the Australian Manufacturing Workers’ Union, which argued that the agreement did not adequately provide for the workers' entitlements.

The central legal issues before the Commission were whether the enterprise agreement met the requirements set out in the Fair Work Act 2009, specifically concerning the provisions for employee entitlements, and whether it complied with the process for approval under the Act. The Commission had to determine if the agreement was "better off overall" for the employees and if it was free from any illegal content or procedural defects.

In its decision, the Commission found that the agreement did not adequately address the entitlements of employees, particularly in relation to shift loadings and allowances. The Commission emphasised that the agreement must provide for entitlements in a manner that is fair and reasonable. Furthermore, the Commission noted procedural issues in how the agreement was negotiated and presented, which did not align with the statutory requirements. Given these findings, the Commission rejected the application for approval of the enterprise agreement. The decision highlighted the importance of ensuring that enterprise agreements not only provide for fair terms and conditions but also comply with the legislative framework governing their approval.

The Fair Work Commission ordered that the application for approval of the Polar Fresh Victoria and National Union of Workers Enterprise Agreement 2016 be dismissed. The Commission directed the parties to address the identified issues and resubmit the agreement for consideration, ensuring compliance with the Fair Work Act and proper negotiation processes. This ruling underscored the necessity for enterprise agreements to meet both substantive and procedural standards to gain approval under the Act.

Polar Fresh Cold Chain Services 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