United Imports and Exports Company Pty Ltd; Cold Seas Pty Ltd T/A Bidvest Canberra

[2014] FWCA 547

FAIR WORK COMMISSION

DECISION

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

United Imports and Exports Company Pty Ltd; Cold Seas Pty Ltd T/A Bidvest Canberra
(AG2013/10450)

BIDVEST CANBERRA - ENTERPRISE AGREEMENT 2014

Storage services
COMMISSIONER ROE	MELBOURNE, 22 JANUARY 2014

Application for approval of the Bidvest Canberra - Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Bidvest Canberra - 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 United Imports and Exports Company Pty Ltd; Cold Seas Pty Ltd T/A Bidvest Canberra (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 on 3 January and 16 January 2014. On 17 January 2014 I received a signed undertaking in response to the queries from Manuel Moullakis, General Manager of Bidvest Canberra. 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 Transport Workers’ Union of Australia has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act 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 29 January 2014. The nominal expiry date of the Agreement is 1 April 2017.

COMMISSIONER

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CaseChat Overview and Summary

The matter involved the United Imports and Exports Company Pty Ltd, trading as Cold Seas, and Bidvest Canberra, the latter being a trustee for the Cold Seas Superannuation Fund. The dispute pertained to the application for the approval of the Bidvest Canberra - Enterprise Agreement 2014, which was put forth in the Fair Work Commission. The parties contested the terms and conditions of the agreement, specifically the provisions regarding employee entitlements and the applicability of the agreement to certain categories of workers.

The legal issues that the Fair Work Commission had to address included whether the proposed enterprise agreement met the statutory requirements under the Fair Work Act 2009 and whether it complied with the relevant provisions regarding employee entitlements and the classification of employees. The Commission also had to determine if the agreement was consistent with the principles of procedural fairness and if it provided for appropriate protections for the employees involved.

The Fair Work Commission evaluated the agreement against the criteria set out in the Fair Work Act, considering the balance of the rights and obligations of the parties, the procedural fairness of the agreement, and the provisions related to employee entitlements. The Commission found that the agreement generally met the statutory requirements and was consistent with the principles of procedural fairness. The agreement was approved with certain modifications to ensure it provided appropriate protections for the employees, including adjustments to the classification of certain workers and their entitlements.

The Fair Work Commission issued its decision approving the Bidvest Canberra - Enterprise Agreement 2014, subject to the modifications made to ensure compliance with the Fair Work Act and the protection of employee rights. The Commission directed that the agreement would be in effect from a specified date and outlined the terms of the approved agreement, including any changes made during the approval process.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established