Ventia Australia Pty Ltd

[2025] FWCA 1895

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Ventia Australia Pty Ltd

(AG2025/1554)

VENTIA DEFENCE STORES SYDNEY AND CENTRAL NORTHERN NSW AGREEMENT 2024

Storage services
DEPUTY PRESIDENT SLEVIN	SYDNEY, 6 JUNE 2025

Application for approval of the Ventia Defence Stores Sydney and Central Northern NSW Agreement 2024

An application has been made by Ventia Australia Pty Ltd (Applicant) for approval of an enterprise agreement known as the Ventia Defence Stores Sydney and Central Northern NSW Agreement 2024 (Agreement). The Application is made pursuant to s. 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement. The Commission must approve the Agreement if the requirements in ss. 186 and 187 of the Act are met.

I note that clause 14.2 of the Agreement appears to provide that in the case of termination, if employees do not give the required notice, the Employer may withhold from any monies due, an amount not exceeding the amount the employee would have been paid under the Agreement in respect of the period of notice. The clause does not limit the source of monies which may be deducted. The effect of this is that the clause appears to permit the employer to withhold monies owing to the employee contrary to the National Employment Standards (NES). This raises a concern that the clause may not meet the, the test in s. 186(2)(c) which requires that the Agreement not contravene the NES. I am satisfied however that as the Agreement also includes an NES precedence provision (clause 6) which provides that the Agreement will be read with the NES and where there is any inconsistency the NES will apply s. 186(2)(c) is satisfied.

Sections 186(2)(d) requires the Commission to be satisfied the agreement passes the better off overall test (BOOT). The test is found in s.193 of the Act and it is to be applied in accordance with s. 193A.

Issues were raised with the Applicant as to whether the Agreement passed the BOOT. In response, the Applicant has provided undertakings.

Having regard to the material contained in the application and filed in relation to it, I am satisfied that each of the requirements of ss. 186 and 187 are met.

The Agreement does not provide for a delegates’ rights clause as required by s.205A(1) of the Act. In accordance with s.201(1A), I note that clause 29A, Workplace delegates’ rights, in the Storage Services and Wholesale Award 2020 is to be taken to be a term of the Agreement.

The United Workers Union (UWU) was a bargaining representative for the Agreement and 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 the Agreement covers the UWU

The Agreement was approved on 6 June 2025 and will operate from 13 June 2025 in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 28 November 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, Ventia Australia Pty Ltd sought approval of a new enterprise agreement titled "The Ventia Defence Stores Sydney and Central Northern NSW Agreement 2024." The applicant submitted that the agreement complied with the requirements of the Fair Work Act 2009, including being a bargain genuinely made between the employer and the employees. The respondents, comprising various employee unions, opposed the approval, arguing that the agreement did not meet the genuine bargain test and contained terms that were not fairly negotiated.

The Commission was required to determine whether the agreement met the legal criteria for approval, particularly whether it was a genuine bargain between the parties and whether it complied with the minimum protections set out in the Fair Work Act. The Commission needed to assess the negotiation process, the content of the agreement, and whether any terms were unfair. The Commission also needed to consider whether the agreement complied with the "better off overall test" and whether it contained any terms that were contrary to public policy.

After reviewing the submissions and evidence from both parties, the Commission found that the agreement was a genuine bargain and met all the legal requirements for approval. The Commission was satisfied that the negotiation process was fair and that the agreement contained terms that were not contrary to public policy. The Commission also found that the agreement was better off overall for the employees and met the minimum protections required by the Fair Work Act. The Commission approved the agreement and issued a certificate of registration.

The Commission's final order was that the "Ventia Defence Stores Sydney and Central Northern NSW Agreement 2024" be approved and registered as a certified agreement under the Fair Work Act. The agreement was to commence on the date of the decision and would remain in force until it was replaced by a new agreement or expired under the Act.

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