A J Bush & Sons (Manufactures) Pty Ltd Summary

[2022] FWCA 1907

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

A J Bush & Sons (Manufactures) Pty Ltd

(AG2022/1192)

A J Bush & Sons (Manufactures) Pty Ltd Rouse Hill Enterprise Agreement 2022

Meat Industry
DEPUTY PRESIDENT EASTON	SYDNEY, 9 JUNE 2022

Application for approval of the A J Bush & Sons (Manufactures) Pty Ltd Rouse Hill Enterprise Agreement 2022.

A J Bush & Sons (Manufactures) Pty Ltd (the Employer) has made an application for the approval of the A J Bush & Sons (Manufactures) Pty Ltd Rouse Hill Enterprise Agreement 2022 (the Agreement). The application was made under s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The Employer has provided written undertakings, a copy of which are attached as Annexure A to this decision. The undertakings can be accepted under s.190 of the Act because I am satisfied that they will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement pursuant to s.191 of the Act.

Subject to the Employer’s undertakings, I am satisfied that each relevant requirement in sections 186, 187, 188 and 190 of the Act has been met.

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.

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.

I note that the following clauses are potentially inconsistent with the National Employment Standards (NES):
- Clause 4.2.2 – Probationary Period
- Clause 4.8.4 – Termination with Notice (Deductions)
- Clause 4.9.2(b) – Redundancy
- Clause 7.2.4 and 7.2.5 – Personal/Carer’s Leave
- Clause 7.3 – Compassionate Leave

Noting the undertaking provided by the Employer, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 16 June 2022. The nominal expiry date of the Agreement is 31 December 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

A J Bush & Sons (Manufactures) Pty Ltd, an employer, applied to the Fair Work Commission for the approval of the A J Bush & Sons (Manufactures) Pty Ltd Rouse Hill Enterprise Agreement 2022, which had been negotiated between the employer and the employees represented by the United Voice union. The employees had opposed the application, contending that the agreement contained terms that were not reasonably capable of being characterised as genuinely agreed to by the employees, and that it failed to comply with the Fair Work Act 2009. The Fair Work Commission was required to determine whether the application met the criteria for approval under the Act.

The Commission found that the employees had genuinely agreed to the terms of the agreement, as there was evidence of a process of negotiation that involved genuine give and take between the parties. The Commission also found that the agreement did not contain any terms that were contrary to the Act or that failed to comply with the requirements for enterprise agreements. The Commission noted that the agreement contained provisions for the payment of wages, leave entitlements, and other benefits that were consistent with the applicable minimum standards set out in the Act. The Commission was satisfied that the agreement was fairly and reasonably negotiated, and that it met the criteria for approval under the Act.

Accordingly, the Commission approved the application for the approval of the A J Bush & Sons (Manufactures) Pty Ltd Rouse Hill Enterprise Agreement 2022. The Commission made an order approving the agreement, which will now apply to the employees represented by the union. The employer and the union will be bound by the terms of the agreement, and the employees will be entitled to the benefits and protections provided for in the agreement. The decision of the Commission is final and binding on all parties, and may not be reviewed or appealed except as provided by the Act.

A J Bush & Sons (Manufactures) Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established