Allsep's Pty Ltd

[2024] FWCA 2887

[2024] FWCA 2887

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Allsep's Pty Ltd

(AG2024/2555)

ALLSEP'S ENTERPRISE AGREEMENT 2024

Food, beverages and tobacco manufacturing industry
COMMISSIONER PERICA	MELBOURNE, 6 AUGUST 2024

Allsep's Enterprise Agreement 2024

1. An application has been made for approval of an enterprise agreement known as the Allsep's Enterprise Agreement 2024 (the Agreement). The application is made under section 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

1. I issued a statement of concerns on 18 July 2024 and conducted a mention hearing on 26 July 2024. Mr. Luke Saccoccio of AI Group appeared on behalf of Allsep’s Pty Ltd (Allsep’s) together with Mr. Anthony Raffa, the General Manager. Mr. Paul Curcio of the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) also appeared.

1. During the mention, I asked for submissions on the Better Off Overall Test (BOOT) assessment and for the status of the AMWU’s Form F18. Mr. Curcio explained he was awaiting Allsep’s response to the statement of concerns before filing a Form F18. Later that day after the response was forwarded, the AMWU filed its Form F18.

OVERALL BOOT ASSESSMENT

1. The Agreement incorporates the Food, Beverage and Tobacco Manufacturing Award 2020 (“Food Award”) save for exclusions of some allowances. It also incorporates the Manufacturing and Associated Industries and Occupations Award 2020 (“Metals Award”)

1. The wage rates are only marginally above the award rates. The rates are between 0.18% to 0.21% above the Food Award and 0.18% above the Metals Award. The rates of pay are each 5 cents per hour above the corresponding rate of pay in the applicable awards. These rates of pay apply for all hours and when employees work hours that attract penalty rates.

2. Allsep’s argues that its employees are better off overall taking into account the following benefits which are either not provided for, or are greater than those provided for in the relevant modern awards:

·   An annual payment of $80 to each employee (clause 11.5);

·   Additional rest breaks where the temperature is 35 degrees of above (clause 13);

·   A greater redundancy payment of 3 weeks’ pay per year of service, together with payment of unused personal/carer’s leave (clause 14.2); and

·   Income protection insurance for full-time and part-time employees (clause 18).

1. The High Court has described the task of BOOT analysis in Aldi Foods Pty Ltd v SDA:[1]

“Whether the Full Bench was satisfied that an employee was better off overall required an evaluative assessment after consideration of the provisions of the award and the Agreement that may have been more beneficial to employees and those that may have been less beneficial to employees. This assessment is a matter of the kind which has been described in other context as: a question, not of principal or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds”

1. Applying the evaluative assessment in Aldi, in a context where the underpinning awards are generally incorporated into the Agreement, the slightly better wage rates together with the benefits referred to above pass the BOOT Test. When considered on an overall basis, each award covered employee and reasonably foreseeable award covered employee is better off overall under the terms of the Agreement then the relevant awards.

OTHER MATTERS

1. The Employer has provided written undertakings. A copy of these undertakings is attached in Annexure A. I am satisfied 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. I therefore note the undertakings are taken to be terms of the Agreement under section 201(3) of the Act.

1. Subject to the undertakings, I am satisfied that each of the requirements of sections 186, 187, 188, 190, 193 and 193A relevant to this application for approval have been met. The Agreement does not cover all 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.

1. The AMWU being a bargaining representative for the Agreement has given notice under section 183 of the Act that it wants the Agreement to cover it. I therefore note the Agreement covers the organisation under section 201(2) of the Act.

1. The Agreement is approved today 6 August 2024. It will operate from 13 August 2024 as required by section 54 of the Act. The nominal expiry date is 10 July 2027.

COMMISSIONER

Annexure A

[1] [2017] HCA 53, [99].

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