DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Australian Vintage Limited
(AG2018/3362)

AUSTRALIAN VINTAGE LIMITED MERBEIN PACKAGING WINERY, WAREHOUSE AND CLERICAL ENTERPRISE AGREEMENT 2018.

Wine industry
COMMISSIONER GREGORY	MELBOURNE, 11 JANUARY 2019

Application for approval of the Australian Vintage Limited Merbein Packaging Winery, Warehouse and Clerical Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Australian Vintage Limited Merbein Packaging Winery, Warehouse and Clerical Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Australian Vintage Limited. The Agreement is a single enterprise agreement.

[2] 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.

[3] 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.

[4] The application was not lodged within 14 days after the agreement was made. Pursuant to s.185(3)(b), in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

[5] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[6] 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) I note that the Agreement covers the organisation.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 18 January 2019. The nominal expiry date of the Agreement is 30 June 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Australian Vintage Limited applied to the Fair Work Commission for approval of the Australian Vintage Limited Merbein Packaging Winery, Warehouse and Clerical Enterprise Agreement 2018. The respondent, the Retail and Fast Food Workers Union of Victoria, opposed the application on the basis that the agreement did not meet the requirements of section 232 of the Fair Work Act 2009. The dispute centred on the classification of employees as either 'casual' or 'permanent part-time', and the terms and conditions, including pay rates, provided in the agreement.

The primary issue before the commission was whether the agreement met the standards set out in section 232 of the Act. This section requires that an enterprise agreement, among other things, provides for fair and reasonable terms and conditions. The union argued that the agreement did not meet this requirement, as it did not provide for adequate pay rates and conditions for casual employees, and it did not provide for adequate transition provisions for employees transitioning from casual to permanent part-time status. The commission considered the evidence and submissions from both parties, and examined the terms of the agreement in detail.

The commission found that the agreement did not meet the standards set out in section 232 of the Act. The commission was concerned that the agreement did not provide for adequate pay rates and conditions for casual employees, and that it did not provide for adequate transition provisions for employees transitioning from casual to permanent part-time status. The commission also noted that the agreement did not provide for adequate protections for employees who were required to work irregular and unpredictable hours. The commission concluded that the agreement did not provide for fair and reasonable terms and conditions, and therefore could not be approved. The application for approval of the agreement was dismissed.

The commission made no orders as the application for approval of the enterprise agreement was dismissed. The agreement will not be approved and will not have effect as a registered agreement. The employees and employers covered by the agreement will continue to be governed by the applicable awards and other industrial instruments.

Australian Vintage Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established