Austco Polar Cold Storage Pty Ltd
[2022] FWCA 4492
•19 DECEMBER 2022
| [2022] FWCA 4492 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Austco Polar Cold Storage Pty Ltd
(AG2022/4812)
Austco Polar Cold Storage & United Workers Union Enterprise Agreement 2022
| Food, beverages and tobacco manufacturing industry | |
| DEPUTY PRESIDENT MASSON | MELBOURNE, 19 DECEMBER 2022 |
Application for approval of the Austco Polar Cold Storage & United Workers Union Enterprise Agreement 2022.
An application has been made for approval of an enterprise agreement known as the Austco Polar Cold Storage & United Workers Union Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Austco Polar Cold Storage Pty Ltd. The Agreement is a single enterprise agreement.
The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.
The NERR was not provided to employees within 14 days after the notification time for the Agreement as required by s.173(3) of the Act. However, I am satisfied that in all of the circumstances and having regard to the Full Bench decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[1], this constitutes a minor procedural or technical error for the purpose of s.188(2)(a). Further, I am satisfied that the employees covered by the Agreement were not likely to be disadvantaged by the error.
Subject to the undertakings referred to above, 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 note that several clauses are inconsistent with the National Employment Standards. Given the written undertakings provided, I am satisfied that the more beneficial entitlements of the NES will prevail.
The United Workers’ Union 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) I note that the Agreement covers the organisation.
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 26 December 2022. The nominal expiry date of the Agreement is 31 August 2023.
DEPUTY PRESIDENT
Annexure A
[1] [2019] FWCFB 318.
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