ARYZTA Australia Pty Ltd T/A ARYZTA

[2022] FWCA 1063

FAIR WORK COMMISSION

CORRECTION TO DECISION

Fair Work Act 2009

s.185—Enterprise agreement

ARYZTA Australia Pty Ltd T/A ARYZTA

(AG2022/321)

ARYZTA Australia Pty Ltd (Vic) Enterprise Agreement 2021

Food, beverages and tobacco manufacturing industry
DEPUTY PRESIDENT YOUNG	MELBOURNE, 28 MARCH 2022

Application for approval of the ARYZTA Australia Pty Ltd (Vic) Enterprise Agreement 2021 – correction to expiry date.

ARYZTA Australia Pty Ltd T/A ARYZTA (the Employer) has made an application for approval of an enterprise agreement known as the ARYZTA Australia Pty Ltd (Vic) Enterprise Agreement 2021 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

The Notice of Employee Representational Rights (NERR) provided to employees referred to the Agreement incorrectly as the ARYZTA Australia Pty Ltd (Vic) Enterprise Agreement 2020. The Employer provided submissions as to this error on 3 March 2022. I am satisfied having regard to those submissions and the Full Bench decision in Huntsman Chemical Company Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Others[1] (Huntsman) that this constitutes a minor technical or procedural error for the purposes of s 188(2)(a) of Act. Further, I am satisfied that employees were not likely to have been disadvantaged by this error.

Accordingly, notwithstanding the matters identified in paragraph [2] above, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2).

The Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

Subject to the undertakings referred to above, and on the basis of the material contained in the application, the accompanying statutory declaration and the additional information provided by the Employer I am satisfied that each of the requirements of ss 186, 187, 188 and 190 as are relevant to this application for approval have been met.

I observe that clauses 24 and 32(c) of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 9(a) 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.

The United Workers’ Union, being a bargaining representative for the Agreement, has given notice under s 183 of the Act that it seeks to be covered by the Agreement. In accordance with s 201(2) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

The Agreement was approved on 28 March 2022 and, in accordance with s 54, will operate from 4 April 2022. The nominal expiry date of the Agreement is 30 June 2024.

DEPUTY PRESIDENT

Annexure A

[1] [2019] FWCFB 318

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

ARYZTA Australia Pty Ltd, trading as ARYZTA, applied to the Fair Work Commission for the correction of the expiry date of the ARYZTA Australia Pty Ltd (Vic) Enterprise Agreement 2021. The dispute involved an error in the Notice of Employee Representational Rights, which incorrectly referred to the agreement as the ARYZTA Australia Pty Ltd (Vic) Enterprise Agreement 2020. The application sought to correct the nominal expiry date of the agreement from 30 June 2024 to 30 June 2025.

The court needed to determine if the error constituted a minor technical or procedural error under section 188(2)(a) of the Fair Work Act 2009 and whether employees were likely to be disadvantaged by this error. Additionally, the court had to assess whether the employer's written undertakings would cause financial detriment to any employee or result in substantial changes to the agreement.

The court found that the error in the Notice of Employee Representational Rights was a minor technical or procedural error and that employees were not likely to have been disadvantaged by this error. The court was also satisfied that the employer's written undertakings would not cause financial detriment to any employee or result in substantial changes to the agreement. The court further observed that certain clauses of the agreement were likely to be inconsistent with the National Employment Standards, but it was satisfied that the more beneficial entitlements of the NES would prevail where there was an inconsistency.

Accordingly, the court approved the correction to the expiry date of the agreement, and it will now operate until 30 June 2025. The United Workers' Union, being a bargaining representative for the agreement, has given notice that it seeks to be covered by the agreement, and the court noted that the agreement covers the organisation.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established