Balfours Bakery Pty Ltd T/A Balfours Bakery Pty Ltd

[2024] FWCA 3992

[2024] FWCA 3992

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Balfours Bakery Pty Ltd T/A Balfours Bakery Pty Ltd

(AG2024/3945)

BALFOURS BAKERY PTY LTD AGREEMENT 2024

Food, beverages and tobacco manufacturing industry
COMMISSIONER PLATT	ADELAIDE, 18 NOVEMBER 2024

Application for approval of the Balfours Bakery Pty Ltd Agreement 2024

1. An application has been made for approval of an enterprise agreement known as the Balfours Bakery Pty Ltd Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Balfours Bakery Pty Ltd T/A Balfours Bakery Pty Ltd (the Applicant). The agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 1 November 2024.

1. On 6 November 2024, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

1. There are two National Employment Standard (NES) issues that require comment:

·  Clause 21.4(b) provides that if an employee fails to give the required notice of termination, the Applicant has the right to withhold from an employee’s termination pay, an amount that is equal to the period of notice not given and does not appear to limit the source of monies which may be deducted. This clause appears to permit the Applicant to withhold monies owing to the employee under the NES.

·  Clause 15.5 does not provide for compassionate leave after the stillbirth of a child of the employee or a member of the employee’s immediate family or household as per s.105(1)(b) of the Act or after the employee or the employee’s spouse or de facto partner has a miscarriage as per s.105(1)(c) of the Act.

1. Clause 2.2(b) of the Agreement acts as an effective NES precedence clause. As a result, the above clauses will not apply to the extent they are inconsistent with the NES.

1. The Applicant has submitted an undertaking in the required form on 12 November 2024. The undertaking deals with the following topics:

   ·  Despite Schedule 2, the rates of pay for Junior Apprentices will be equal to the rates provided for in Clause 15.3 of the Food, Beverage and Tobacco Manufacturing Award 2020 (Apprentices who have completed Year 12), plus 2.0%

   ·  Despite Clause 5.1(b) the maximum number of ordinary hours for day workers will be 8 hours unless otherwise agreed in accordance with Clause 12.5 of the Food, Beverage and Tobacco Manufacturing Award 2020.

·  The span of ordinary hours will be between 6:00am and 6:00pm and may be moved up to 1 hour forward or 1 hour back.

·  An employee who works a non-continuous afternoon or night shift will be paid 150% of the ordinary hourly rate the first 3 hours and 200% of the ordinary hourly rate after 3 hours.

·  Clause 21.5 Abandonment of employment a will be read in conjunction with Clause 21.1.

1. A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives did not express any view on the undertaking.

1. The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

1. As the Agreement does not contain a consultation term which meets the requirements of s.205 of the Act, the model consultation term is taken to be a term of the Agreement.

1. 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) of the Act I note that the Agreement covers this organisation.

1. I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 1 March 2028.

COMMISSIONER

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