ARYZTA Australia Pty Ltd T/A ARYZTA
[2022] FWCA 1063
•28 MARCH 2022
| [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
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