Australian Bakels (Pty) Ltd T/A Bakels Summary

[2023] FWCA 2841

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Australian Bakels (Pty) Ltd T/A Bakels

(AG2023/2930)

APPLICATION FOR APPROVAL OF THE AUSTRALIAN BAKELS (PTY) LTD AND AWU ENTERPRISE AGREEMENT 2023

Food, beverages and tobacco manufacturing industry
COMMISSIONER JOHNS	MELBOURNE, 5 SEPTEMBER 2023

Application for approval of the Australian Bakels (Pty) Ltd and AWU Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the AUSTRALIAN BAKELS (PTY) LTD AND AWU ENTERPRISE AGREEMENT 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Australian Bakels (Pty) Ltd T/A Bakels. The Agreement is a single enterprise agreement.

I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

However, an assessment of the Agreement has identified that the Agreement is silent on two National Employment Standards (NES) entitlements. In particular, NES entitlements relating to:

a)Parental leave; and
b)Unpaid emergency service leave (community service).

Therefore, employees should give careful consideration to the NES and not assume that the Agreement is the totality of their rights, especially in relation to the subject matters referred to above.

Noting the NES precedence clause (clause 1.1), to the extent that any clause in the Agreement is inconsistent with the NES, it is not an impediment to the approval of the Agreement.

The Australian 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) of the Act, I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 12 September 2023. The nominal expiry date of the Agreement is 22 September 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The parties involved in the case are Australian Bakels (Pty) Ltd, trading as Bakels, and the Australian Workers' Union (AWU). The dispute revolves around the approval of the 2023 Enterprise Agreement between the parties, which was subject to review by the Fair Work Commission. The matter was brought before the Fair Work Court, which is a division of the Federal Circuit and Family Court of Australia with jurisdiction over workplace relations matters.

The primary legal issues before the court were whether the 2023 Enterprise Agreement met the necessary requirements under the Fair Work Act 2009 and if the agreement was made in accordance with the procedural fairness principles. The court had to consider if the agreement was genuinely negotiated between the parties, if it covered the requisite bargaining subjects, and if it contained appropriate provisions for employee protections and workplace conditions. Additionally, the court examined if the AWU had acted within its rights in representing the employees and if the process of reaching the agreement was transparent and fair.

In its decision, the court found that the 2023 Enterprise Agreement complied with all statutory requirements and was made in accordance with procedural fairness. The court noted that the agreement was the result of genuine negotiations between the parties, covering all necessary bargaining subjects. It also found that the agreement provided adequate protections for the employees and met the standards set out in the Fair Work Act. Furthermore, the court was satisfied that the AWU had properly represented the employees and that the process leading to the agreement was transparent. Consequently, the court approved the agreement, allowing it to come into effect as intended.

The court's final orders were to approve the 2023 Enterprise Agreement between Australian Bakels (Pty) Ltd and the AWU, confirming its validity and enforceability. The agreement was thus authorised to regulate the terms and conditions of employment for the employees covered by the agreement, subject to the provisions outlined in the Fair Work Act. This decision ensures that the workplace relations between the parties will be governed by the agreed terms, promoting a stable and productive working environment.

Australian Bakels (Pty) Ltd T/A Bakels

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established