Allied Pinnacle Pty Ltd

[2024] FWCA 2551

[2024] FWCA 2551

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Allied Pinnacle Pty Ltd

(AG2024/2388)

ALLIED PINNACLE TENNYSON DISTRIBUTION CENTRE (DRIVERS) ENTERPRISE AGREEMENT 2023-2025

Food, beverages and tobacco manufacturing industry
DEPUTY PRESIDENT DOBSON	BRISBANE, 10 JULY 2024

Application for approval of the Allied Pinnacle Tennyson Distribution Centre (Drivers) Enterprise Agreement 2023-2025

1. An application has been made for approval of an enterprise agreement known as the Allied Pinnacle Tennyson Distribution Centre (Drivers) Enterprise Agreement 2023-2025 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Allied Pinnacle Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

1. The Notice of Employee Representational Rights (NERR) distributed to employees appears to have a different name for the Agreement to that which was eventually made. However, I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural departure from the prescribed form requirements of the NERR under s.174(1A) of the Act and that the employees covered by the Agreement were not likely to have been disadvantaged by this. Accordingly, I exercise the discretion conferred by s.188(5) of the Act.[1]

1. On the basis of the material contained in the application and accompanying declarations, having regard to the Statement of Principles,[2] I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met.

1. I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

·  Clause 4.7.5 – Abandonment.

·   Clause 7.1.1 – Annual Leave.

·   Clause 7.2.3(1)(4) – Personal/Carer’s Leave

·   Clause 7.5.6 – Substitution of Public Holiday.

However, noting clause 1.7 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Transport Workers’ Union of Australia (TWU) 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 TWU.

1. The TWU raised concerns regarding the Better Off Overall Test (BOOT). I have considered those submissions but have determined that given the more beneficial terms of the Agreement, the Agreement passed the BOOT.

1. The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 30 June 2025.

DEPUTY PRESIDENT

[1] Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[2019] FWCFB 318 [117].

[2] Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023.

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