Arnott’s Biscuits Limited

[2021] FWCA 4732

[2021] FWCA 4732

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Arnott’s Biscuits Limited
(AG2021/6284)

ARNOTT’S BISCUITS ENTERPRISE AGREEMENT 2021

Food, beverages and tobacco manufacturing industry
DEPUTY PRESIDENT ASBURY	BRISBANE, 3 AUGUST 2021

Application for approval of the Arnott’s Biscuits Enterprise Agreement 2021.

[1] Arnott’s Biscuits Limited (the Applicant) applies to the Fair Work Commission (the Commission) for approval of an enterprise agreement known as the Arnott’s Biscuits Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] I observe that the following clauses may be inconsistent with the National Employment Standards (NES):

•  Clause 4.3(4) – Abandonment of Employment; and

•  Clause 7.2(6) – Substitution of Public Holidays.

[3] I note that the Applicant has given an undertaking that the Agreement will be read and interpreted in conjunction with the NES and that where there is an inconsistency between a provision of the Agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency. On this basis, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES. I also note that by virtue of s. 55 of the Act, an enterprise agreement must not exclude the NES or any provisions of the NES and s. 56 provides that a term of an enterprise agreement has no effect to the extent that it contravenes s. 55.

[4] A copy of this Undertaking is attached as Annexure A to this decision. I am satisfied that the effect of accepting the Undertaking is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or

(b) result in substantial changes to the Agreement.

[5] The views of each person or organisation the Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertaking. Pursuant to subsection 190(3) of the Act, I accept the Undertaking. In accordance with s.201(3) of the Act, a copy of the undertakings will be attached to the Agreement and forms part of the Agreement.

[6] Clause 1.4 of the Agreement states the Agreement will operate from the date of approval. This is inconsistent with s.54 of the Act which states that an enterprise agreement approved by the Commission operates from 7 days after the agreement is approved, or if a later day is specified in the agreement, that later day. Accordingly, the Agreement will operate 7 days from the date of this decision.

[7] I am satisfied, based on the information set out in the Form F16 Application for approval of an enterprise agreement, the Form F17 Employer’s declaration in support of an application for approval of the Agreement and responses to requests for further information provided by the Applicant, that each of the requirements of ss. l86, 187 and 188 as are relevant to this application for approval have been met. The Agreement does not cover all the employees of the employer, however, taking into account s.186(3) and (3A), and on the basis of the information contained in the Form F17, I am satisfied that the group of employees covered by the Agreement was fairly chosen.

[8] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union and the United Workers’ Union being bargaining representatives for the Agreement, have each given notice under s.183 of the Act that it wants the Agreement to cover them. In accordance with s.201(2) of the Act, and based on the declarations provided by the organisations, I note that the Agreement covers these organisations.

[9] The Agreement is approved in accordance with s.54 of the Act and will operate from 10 August 2021. The nominal expiry date of the Agreement is 24 March 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE512597  PR732441>

Annexure A