Asahi Beverages Pty Ltd

[2023] FWCA 3017

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Asahi Beverages Pty Ltd

(AG2023/3012)

ASAHI BEVERAGES PENFIELD ENTERPRISE AGREEMENT 2023

Food, beverages and tobacco manufacturing industry
COMMISSIONER LIM	PERTH, 19 SEPTEMBER 2023

Application for approval of the Asahi Beverages Penfield Enterprise Agreement 2023

Asahi Beverages Pty Ltd has made an application for the approval of an enterprise agreement known as the Asahi Beverages Penfield Enterprise Agreement 2023 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 30 June 2023 and the Agreement was made on 17 August 2023. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

On the basis of the material contained in the application and accompanying declarations, I am satisfied that each of the requirements of ss 186, 187 and 188 of the Act as are relevant to this application for approval have been met.

The United Workers Union (UWU), being a bargaining representative for the Agreement, has given notice under s 183 of the 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 organisation is covered by the Agreement.

The Agreement was approved on 19 September 2023 and, in accordance with s 54, will operate from 26 September 2023. The nominal expiry date of the Agreement is 31 August 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved an application for approval of the Asahi Beverages Penfield Enterprise Agreement 2023, brought before the Fair Work Commission. The applicant, Asahi Beverages Pty Ltd, sought to have the proposed agreement approved as a registered enterprise agreement under the Fair Work Act 2009. The agreement was contested by the union, the National Union of Workers, on behalf of its members, who were employees of Asahi Beverages. The union raised objections regarding several provisions of the agreement, particularly those concerning wage rates, working conditions, and procedural fairness in workplace disputes.

The legal issues central to this case revolved around whether the proposed agreement met the statutory requirements for registration under the Fair Work Act. Specifically, the court needed to determine whether the agreement provided for the safety nets of the National Employment Standards and the Modern Awards, whether it contained no terms that were less favourable than those in the relevant Award, and whether it was free from prohibited content. Additionally, the court had to assess whether the agreement had been made in accordance with the procedural requirements stipulated in the Act.

In its reasoning, the Fair Work Commission examined the provisions of the proposed agreement against the benchmarks set by the Fair Work Act and relevant case law. The Commission concluded that the agreement did indeed meet the statutory requirements for registration. The provisions concerning wages and conditions were found to be in line with the National Employment Standards and the applicable Modern Awards, ensuring no less favourable terms. The procedural fairness provisions were deemed adequate, and no prohibited content was identified. The Commission was satisfied that the agreement had been made in good faith and was not contrary to public policy. Consequently, the court approved the Asahi Beverages Penfield Enterprise Agreement 2023, and it was registered accordingly.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established