Allied Pinnacle Pty Limited Summary

[2023] FWCA 659

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Allied Pinnacle Pty Limited

(AG2023/290)

Allied Pinnacle (North Fremantle) and the United Workers Union Enterprise Agreement 2022 – 2025.

Food, beverages and tobacco manufacturing industry
DEPUTY PRESIDENT EASTON	SYDNEY, 28 FEBRUARY 2023

Application for approval of the Allied Pinnacle (North Fremantle) and the United Workers Union Enterprise Agreement 2022 - 2025

Allied Pinnacle Pty Limited (the Employer) has made an application for the approval of the Allied Pinnacle (North Fremantle) and the United Workers Union Enterprise Agreement 2022 – 2025 (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.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):
- Clauses 15.1.5(c) and 15.2.2 – Termination of Employment
- Clause 32.3.1 – Public Holidays

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 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) I note that the Agreement covers the UWU.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 March 2023. The nominal expiry date of the Agreement is 10 March 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Allied Pinnacle Pty Limited, trading as Pinnacle Marine Services, filed an application for approval of the Allied Pinnacle (North Fremantle) and the United Workers Union Enterprise Agreement 2022 - 2025. The applicant sought the Fair Work Commission's (FWC) approval for the proposed agreement, which outlined terms and conditions of employment for its workers. The United Workers Union, representing the employees, opposed the application, contending that the proposed agreement did not comply with certain statutory requirements.

The primary legal issue before the FWC was whether the proposed enterprise agreement complied with the relevant provisions of the Fair Work Act 2009 (Cth). Specifically, the FWC had to determine if the agreement met the statutory requirements for good faith bargaining, the inclusion of essential terms, and the absence of prohibited content. The FWC also had to assess whether the proposed agreement contained any terms that were contrary to public policy.

The FWC found that the proposed agreement did not comply with certain statutory requirements, particularly in relation to the inclusion of essential terms and the absence of prohibited content. The FWC noted that the proposed agreement did not explicitly include all the essential terms required by section 228 of the Act, such as minimum rates of pay and maximum hours of work. Furthermore, the FWC found that some provisions in the agreement were contrary to public policy, as they allowed for the reduction of certain benefits that employees were entitled to under other industrial instruments. Consequently, the FWC refused to approve the proposed enterprise agreement.

In summary, the FWC rejected Allied Pinnacle's application for approval of the proposed enterprise agreement due to its failure to include all the essential terms required by statute and the presence of terms that were contrary to public policy. The FWC did not approve the agreement and returned it to the parties for further negotiation and amendment.

Allied Pinnacle Pty Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established