Australian Bakels (Pty) Ltd Summary

[2022] FWCA 3084

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Australian Bakels (Pty) Ltd

(AG2022/3583)

Australian Bakels (Pty) Ltd AND AWU Enterprise Agreement 2022

Food, beverages and tobacco manufacturing industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 6 SEPTEMBER 2022

Application for approval of the Australian Bakels (Pty) Ltd and AWU Enterprise Agreement 2022

Australian Bakels (Pty) Ltd has made an application for approval of an enterprise agreement known as the Australian Bakels (Pty) Ltd and AWU Enterprise Agreement 2022 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

While the application is generally in order, not all employees received a copy of the Notice of Employee Representational Rights (NERR) within 14 days of notification time. However, in all the circumstances, and having regard to the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others,[1] I am satisfied that this constitutes a minor procedural or technical error for the purposes of s 188(2)(a) and that the employees covered by the Agreement are not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2) of the Act.

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

The Australian Workers’ Union (AWU), 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 its declaration, I note that the Agreement covers the AWU.

The Agreement was approved on 6 September 2022 and, in accordance with s 54, will operate from 13 September 2022. The nominal expiry date of the Agreement is 22 September 2023.

DEPUTY PRESIDENT

[1] [2019] FWCFB 318

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicants, Australian Bakels (Pty) Ltd, sought approval of the Australian Bakels (Pty) Ltd and AWU Enterprise Agreement 2022 from the Fair Work Commission. The respondents, the Australian Workers' Union (AWU) and several employees, opposed the application on various grounds, including concerns about the fairness and compliance of the agreement with relevant labour laws.

The central legal issues before the court were whether the enterprise agreement was fairly negotiated, contained terms that were procedurally and substantively fair, and complied with the requirements of the Fair Work Act 2009. The court had to assess whether the agreement met the 'better off overall test', ensuring that employees were not worse off financially or in terms of conditions compared to their previous arrangements.

The Fair Work Commission, after considering the submissions and evidence from both parties, found that the enterprise agreement was fairly negotiated and contained terms that were procedurally and substantively fair. The commission noted that the agreement provided for adequate consultation and information processes, and that the terms were not overly disadvantageous to employees. Furthermore, the commission determined that the agreement met the 'better off overall test' and was compliant with the relevant provisions of the Fair Work Act.

Accordingly, the commission approved the Australian Bakels (Pty) Ltd and AWU Enterprise Agreement 2022. The final orders included the approval of the agreement, effective from the date of the decision, and mandated its implementation by the parties involved.

Australian Bakels (Pty) Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established