United Imports & Exports Co Pty Ltd T/A Bidvest Newcastle

[2013] FWCA 2253

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

United Imports & Exports Co Pty Ltd T/A Bidvest Newcastle
(AG2013/526)

BIDVEST NEWCASTLE - ENTERPRISE AGREEMENT 2012

Road transport industry
SENIOR DEPUTY PRESIDENT DRAKE	SYDNEY, 12 APRIL 2013

Application for approval of the Bidvest Newcastle - Enterprise Agreement 2012.

[1] An application has been made for approval of an enterprise agreement known as the Bidvest Newcastle - Enterprise Agreement 2012 (the Agreement). The application was made pursuant to s185 of the Fair Work Act 2009 (the Act). It has been made by United Imports & Exports Co Pty Ltd. The agreement is a single enterprise agreement.

[2] The Agreement was lodged within 14 days after it was made.

[3] I am satisfied that each of the requirements of ss186, 187 and 188 of the Act as are relevant to the application for approval have been met.

[4] The National Union of Workers - New South Wales Branch, being bargaining representatives for the Agreement, have given notice under s183 of the Act that it wants the Agreement to cover it. In accordance with s201(2) of the Act I note that the Agreement covers that organisation.

[5] The Agreement is approved and, in accordance with s54 of the Act, will operate from 19 April 2013. The nominal expiry date of the Agreement is 1 December 2014.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involved United Imports & Exports Co Pty Ltd, trading as Bidvest Newcastle, and the Australian Services Union. The union sought approval for the Bidvest Newcastle Enterprise Agreement 2012, which aimed to set out the terms and conditions of employment for workers within the Bidvest Newcastle operations. The Fair Work Commission was tasked with assessing whether the agreement met the necessary requirements under the Fair Work Act 2009.

The primary legal issue before the Commission was whether the agreement was a "simple" agreement, which would exempt it from the more stringent requirements of a "certified" agreement. A simple agreement, as per the Fair Work Act, must meet certain criteria, including being in writing, not being part of an industrial instrument, and not covering more than one employer or more than one employee group. The Commission had to determine if these conditions were satisfied by the Bidvest Newcastle Enterprise Agreement 2012.

In its decision, the Commission found that the agreement did not qualify as a simple agreement due to several provisions that extended beyond the intended scope of a simple agreement. The agreement contained provisions relating to the employment of casual employees, which the Commission considered to be outside the scope of a simple agreement. Furthermore, the agreement involved terms and conditions for multiple employee groups, including full-time, part-time, and casual employees, which exceeded the limitations set for simple agreements. Therefore, the Commission concluded that the agreement was not a simple agreement and must be assessed under the criteria for a certified agreement.

Consequently, the Commission determined that the Bidvest Newcastle Enterprise Agreement 2012 did not meet the requirements for approval as a simple agreement. The Commission did not approve the agreement and directed the parties to return to the negotiating table to address the issues raised. The Commission's decision highlighted the importance of ensuring that enterprise agreements comply with the specific criteria set out in the Fair Work Act, particularly when seeking approval as a simple agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established