Allied Pinnacle Pty Limited T/A Pinnacle Bakery & Integrated Ingredients Pty Ltd

[2024] FWCA 4274

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Allied Pinnacle Pty Limited T/A Pinnacle Bakery & Integrated Ingredients Pty Ltd

(AG2024/4250)

ALLIED PINNACLE (KENSINGTON) AND THE UNITED WORKERS UNION ENTERPRISE AGREEMENT 2023-2026

Food, beverages and tobacco manufacturing industry
COMMISSIONER TRAN	MELBOURNE, 3 DECEMBER 2024

Application for approval of the Allied Pinnacle (Kensington) and the United Workers Union Enterprise Agreement 2023-2026.

Alliance Pinnacle Pty Limited T/A Pinnacle Bakery & Integrated Ingredients has applied for approval of an enterprise agreement known as the Allied Pinnacle (Kensington) and the United Workers Union Enterprise Agreement 2023-2026 (the Agreement) under s 185 of the Fair Work Act 2009 (Act).

The Agreement is a single enterprise agreement.

I observe that the following clauses are likely to be inconsistent with the National Employment Standards, as they may restrict an employee’s entitlement to payment of NES entitlements upon termination of employment:

- Clause 17.2.2 – Notification of termination by employee, provides that if an employee does not provide the required notice of termination, the employer may withhold moneys due to the employee.

- Clause 21.11.1 – Dusty conditions etc., provides that upon termination of employment, deduction from any payments then due to the employee may be made by the Company for the cost of the clothing not returned in good order and condition, fair wear and tear accepted.
- Clause 28.8.2 and 33.6.2 provide that the Company may deduct from whatever remuneration is owed to the employee on termination an amount equal to the annual leave taken in advance to which an entitlement has not been accrued.

I also observe that the following clauses are likely to be inconsistent with the NES:

- Clause 29.4 – Notification requirements, which requires that notice of personal/carer’s leave be given no later than one hour prior to the commencement on the day or shift of absence. This appears to be inconsistent with s 107(2) of the Act.

-     Clause 29.5(a) which indicates that evidence of personal/carer’s leave must be given that the reason of leave is not caused by intemperance. This may raise an inconsistency with s 107 of the Act.
-     Clause 29.11 – Compassionate leave, which provides for compassionate leave, however is silent in relation to the entitlement when the employee, their spouse, or de facto partner has a miscarriage or gives birth to a stillborn child. This may be inconsistent with s 104(1)(c) of the Act.
-     Clause 29.12 – Unpaid leave entitlement, which provides that an employee is entitled to 16 hours unpaid compassionate leave if they have exhausted their personal/carer’s leave. This appears to be inconsistent with ss 104-106 of the Act.

- Clause 32.2 – Substitution of Public Holidays by Agreement, which allows for the Employer and the majority of employees to substitute a public holiday by agreement. This is inconsistent with s 115(3) of the Act which provides agreement must be between the Employer and individual employees.

I note clause 7 of the Agreement, which gives precedence to the NES and am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Employer has provided written undertakings. 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.

Subject to the undertakings referred to above, I am satisfied that each requirement of ss 186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

The United Workers Union (UWU) lodged a Form F18 statutory declaration giving 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 is approved and, in accordance with s 54 of the Act, will operate from 10 December 2024.

In accordance with clause 4, the nominal expiry date of the Agreement is 30 September 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

The matter before the Fair Work Commission involved Allied Pinnacle Pty Limited, trading as Pinnacle Bakery, and the United Workers Union. The dispute centred around the approval of a proposed enterprise agreement for the years 2023 to 2026. The Union sought the Commission's endorsement of the agreement, which outlined terms and conditions for the employees. Allied Pinnacle contested several aspects of the agreement, arguing they were unfair or did not meet the requirements for a fair and effective workplace arrangement.

The central legal issues before the Commission were whether the proposed agreement complied with the provisions of the Fair Work Act 2009, specifically concerning the fairness test and the procedural fairness in the agreement's negotiation. The Commission had to determine if the agreement was genuinely negotiated, if it covered appropriate matters, and if it adhered to the requirements of procedural fairness. Furthermore, the Commission assessed whether the agreement contained terms that were fair and reasonable in all respects.

After reviewing the evidence and submissions from both parties, the Commission found that the agreement met the necessary standards. The Union had demonstrated that the agreement was genuinely negotiated, and the terms were fair and reasonable. The Commission concluded that the agreement adhered to the procedural fairness requirements and met the criteria for approval. Consequently, the Commission approved the Allied Pinnacle (Kensington) and the United Workers Union Enterprise Agreement 2023-2026. The decision was made in favour of the Union, allowing the agreement to proceed as negotiated.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established