Annex Foods Pty Ltd

[2024] FWCA 4533

[2024] FWCA 4533

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Annex Foods Pty Ltd

(AG2024/4678)

ANNEX ENTERPRISE AGREEMENT 2024

Food, beverages and tobacco manufacturing industry
COMMISSIONER MIRABELLA	MELBOURNE, 17 DECEMBER 2024

Application for approval of the Annex Enterprise Agreement 2024

1. Annex Foods Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Annex Enterprise Agreement 2024 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (Cth) (the FW Act). The Agreement is a single enterprise agreement.

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 FW Act, that commenced operation on 6 June 2023. The notification time for the Agreement was 3 May 2024 and the Agreement was made on 20 November 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

1. 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. The undertakings are taken to be a term of the Agreement.

1. Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of sections 186, 187, 188 and 190, as are relevant to this application for approval, has been met.

1. The employer did not provide employees with the correct name of the Agreement in the Notice of Employee Representational Rights (NERR). Pursuant to s.188(5), I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural error. 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 to within the meaning of s.188(5) of the FW Act.

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

• Clause 15.6: Termination – serious misconduct

1. However, noting clause 3.4 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Australian Manufacturing Workers’ Union being a bargaining representative for the Agreement, has given notice under s 183 of the FW Act that it wants the Agreement to cover it. In accordance with s 201(2) (and based on the declaration provided by the organisation), I note that the Agreement covers the organisation.

1. The Agreement was approved on 17 December 2024 and, in accordance with s.54, will operate from 24 December 2024. The nominal expiry date of the Agreement is 24 December 2027.

COMMISSIONER

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Annexure A