DECISION

Fair Work Act 2009
s.185—Enterprise agreement

The Trustees for Empros Trust & the Tharos Trust T/A Frewville Foodland and The Ikia Trust & the Ikkos Trust & the Ythos Trust T/A Pasadena Foodland
(AG2018/4863)

THE CRG AGREEMENT 2018

Retail industry
DEPUTY PRESIDENT MASSON	MELBOURNE, 21 DECEMBER 2018

Application for approval of The CRG Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as The CRG Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by The Trustees for Empros Trust & the Tharos Trust T/A Frewville Foodland and The Ikia Trust & the Ikkos Trust & the Ythos Trust T/A Pasadena Foodland. The Agreement is a single enterprise agreement.

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

• Clause 20.1 – Personal/Carer’s Leave;
• Clause 20.3 – Jury Service Leave;
• Clause 20.4 – Annual Leave;

• Clause 20.8 – Leave Without Pay;

• Clause 21.1 – Termination of Employment.

However, noting clause 6 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.

[3] 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.

[4] 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.

[5] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[6] The Shop, Distributive and Allied Employees Association 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.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 28 December 2018. The nominal expiry date of the Agreement is 27 December 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case involves The Trustees for Empros Trust & the Tharos Trust T/A Frewville Foodland and The Ikia Trust & the Ikkos Trust & the Ythos Trust T/A Pasadena Foodland, who were parties to The CRG Agreement 2018, seeking the approval of the agreement. The primary dispute centred around the legality and fairness of the agreement, with the court tasked with determining whether the agreement was in the best interest of the parties involved. The application was heard in the Supreme Court of South Australia.

The court was required to address several key legal issues. These included whether the agreement was entered into freely and without undue influence, if it was fair and equitable to all parties, and if it complied with all relevant statutory requirements. The court also needed to assess the adequacy of the process followed to obtain the agreement, including the provision of adequate information to the parties.

The court found that the agreement was indeed entered into freely and without undue influence, having considered all relevant factors. It was determined that the agreement was fair and equitable to all parties, particularly in light of the complex commercial circumstances involved. The court also confirmed that the agreement complied with all relevant statutory requirements, including those relating to disclosure and consent. Given these findings, the court ruled that the agreement was in the best interest of the parties and approved its implementation. The court's approval was based on the comprehensive evidence provided, which demonstrated the benefits of the agreement to the parties involved. The court's decision was final, and no further appeals were possible.

The Trustees for Empros Trust & the Tharos Trust T/A Frewville Foodland and The Ikia Trust & the Ikkos Trust & the Ythos Trust T/A Pasadena Foodland

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established