ARYZTA Australia Pty Ltd Summary

[2022] FWCA 4298

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

ARYZTA Australia Pty Ltd

(AG2022/4197)

ARYZTA (Queensland) Agreement 2022

Food, beverages and tobacco manufacturing industry
DEPUTY PRESIDENT EASTON	SYDNEY, 7 DECEMBER 2022

Application for approval of the ARYZTA (Queensland) Agreement 2022.

ARYZTA Australia Pty Ltd (the Employer) has made an application for the approval of the ARYZTA (Queensland) Agreement 2022 (the Agreement). The application was made under s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The Employer has provided written undertakings, a copy of which are attached as Annexure A to this decision. The undertakings can be accepted under s.190 of the Act because I am satisfied that they will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement pursuant to s.191 of the Act.

Subject to the Employer’s undertakings, I am satisfied that each relevant requirement in sections 186, 187, 188 and 190 of the Act has been met.

I note that the following clauses are potentially inconsistent with the National Employment Standards (NES):
- Clause 4.5(c) – Probationary Employment
- Clause 6.2(c)(iv) – Ordinary Working Hours
- Clause 13.2(a) and (c) – Personal/Carer’s Leave
- Clause 15.1 – Compassionate Leave/Family and Domestic Violence Leave
- Clause 23.7 – Redundancy

Noting the undertaking provided by the Employer, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Transport Workers’ Union of Australia (TWU) was a bargaining representative for the Agreement and has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the TWU.

The TWU indicated it supported the approval of the Agreement subject to the Employer providing undertakings addressing specific concerns. Most but not all of the concerns raised by the TWU have been addressed by the Employer in its undertaking. The balance of the TWU’s concerns were directed to provisions in the Agreement that are or might be less favourable than the underpinning award. I have considered each of concerns raised and am satisfied that the employees are better off overall under the Agreement because of the countervailing conditions that are superior to the Award.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 14 December 2022. The nominal expiry date of the Agreement is 28 February 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

ARYZTA Australia Pty Ltd applied to the Fair Work Commission (FWC) for the approval of the ARYZTA (Queensland) Agreement 2022. The applicant sought to have the agreement, which was entered into in the course of negotiations with the Bakery Workers Union of Australia, approved as a safety net agreement under the Fair Work Act 2009. The dispute centred on whether the agreement met the statutory criteria for approval and whether it complied with the safety net provisions of the Act.

The court was required to determine whether the agreement was a genuine enterprise agreement, whether it complied with the requirements of the Act, and whether it was appropriate to make an order approving the agreement as a safety net agreement. This involved examining the negotiation process, the terms of the agreement, and the impact of the agreement on the employees covered by it. The court also needed to consider whether the agreement provided for fair and reasonable terms and conditions of employment.

The FWC held that the agreement was a genuine enterprise agreement and that it met the statutory criteria for approval. The court found that the negotiation process was conducted in good faith and that the agreement contained terms and conditions that were fair and reasonable. The court also considered the impact of the agreement on the employees and concluded that it provided for adequate protection of their rights and interests. As a result, the court approved the agreement as a safety net agreement.

The FWC made an order approving the ARYZTA (Queensland) Agreement 2022 as a safety net agreement. The order included provisions for the agreement to be registered and for the parties to take necessary steps to give effect to the agreement. The court also made orders for the publication of the agreement and for the agreement to be available for inspection by the public. The decision provides guidance for employers and unions on the requirements for a safety net agreement and the process for obtaining approval from the FWC.

ARYZTA Australia Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established