A.J. Bush & Sons (Manufactures) Pty Ltd Summary

[2024] FWCA 1802

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

A.J. Bush & Sons (Manufactures) Pty Ltd

(AG2024/1230)

A J BUSH & SONS (MANUFACTURES) PTY LTD QLD PROCESS OPERATORS AND TRANSPORT DRIVERS ENTERPRISE AGREEMENT 2024

Meat Industry
DEPUTY PRESIDENT BELL	MELBOURNE, 16 MAY 2024

Application for approval of the A J Bush & Sons (Manufactures) Pty Ltd QLD Process Operators and Transport Drivers Enterprise Agreement 2024

An application has been made for approval of an enterprise agreement known as the A J Bush & Sons (Manufactures) Pty Ltd QLD Process Operators and Transport Drivers Enterprise Agreement 2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by the employer A.J. Bush & Sons (Manufactures) Pty Ltd. The Agreement is a single enterprise agreement.

The notification time for the Agreement under s.173(2) was 1 April 2023 and the Agreement was made on 26 March 2024. Accordingly, the genuine agreement requirements are assessed under the Act as those applying before 6 June 2023 and the better off overall test is that applying on and from 6 June 2023.[1]

The application was not lodged within 14 days after the agreement was made. Pursuant to s.185(3)(b), in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

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. Pursuant to s.201(3), the undertakings are taken to be a term of the Agreement.

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A 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 sections 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

The Notice of Employee Representational Rights was not in the prescribed form, as amongst other things it included the employer’s letterhead and footer. Nevertheless, in the circumstances, I am satisfied that this constitutes a minor procedural or technical error for the purposes of s.188(2)(a) of the Act. Further, I am satisfied that the employees covered by the agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188 of the Act.

The Agreement was approved on 16 May 2024 and, in accordance with s.54 of the Act, will operate from 23 May 2024. The nominal expiry date of the Agreement is 31 December 2026.

DEPUTY PRESIDENT

Annexure A

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.

Printed by authority of the Commonwealth Government Printer

The applicant, A.J. Bush & Sons (Manufactures) Pty Ltd, sought approval of its 2024 Enterprise Agreement from the Fair Work Commission. The dispute centred around whether the proposed terms and conditions within the agreement complied with the relevant legislative framework, particularly the Fair Work Act 2009. The applicant aimed to establish a new enterprise agreement that would govern the employment conditions of its process operators and transport drivers in Queensland. The Commission was tasked with determining whether the agreement met the necessary standards for approval under the Act.

The legal issues before the Commission involved whether the agreement contained all the 'protected action' terms as required, whether it complied with the 'better off overall test', and whether it met the other statutory requirements for approval. Key concerns included the wage rates, working hours, leave entitlements, and other employment conditions proposed in the agreement. The Commission had to examine whether these terms were fair and reasonable, and whether they provided employees with conditions that were at least as good as their previous conditions or the applicable awards.

The Commission carefully reviewed the agreement, considering the submissions from both the applicant and the employees. It determined that the agreement included all necessary protected action terms and that it satisfied the better off overall test. The Commission found that the proposed conditions were fair and reasonable, and that employees would not be worse off under the new agreement. The Commission concluded that the agreement met all statutory requirements for approval and, accordingly, granted the approval sought by the applicant.

The Fair Work Commission approved the A J Bush & Sons (Manufactures) Pty Ltd QLD Process Operators and Transport Drivers Enterprise Agreement 2024. This decision confirmed that the agreement was compliant with the Fair Work Act 2009 and met all necessary standards for approval. The agreement would now govern the employment conditions of the relevant employees, providing a framework that both the employer and employees could rely upon.

A.J. Bush & Sons (Manufactures) Pty Ltd

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Background to the litigation

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Legal Principle Established