Barrett Burston Malting Co. Pty. Ltd. T/A Barrett Burston Malting Co Pty Ltd

[2023] FWCA 117

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Barrett Burston Malting Co. Pty. Ltd. T/A Barrett Burston Malting Co Pty Ltd

(AG2022/5331)

BARRETT BURSTON MALTING COMPANY PTY LTD (GEELONG) ENTERPRISE AGREEMENT 2022

Food, beverages and tobacco manufacturing industry
COMMISSIONER CIRKOVIC	MELBOURNE, 16 JANUARY 2023

Application for approval of the Barrett Burston Malting Company Pty Ltd (Geelong) Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the Barrett Burston Malting Company Pty Ltd (Geelong) 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 Barrett Burston Malting Co. Pty. Ltd. T/A Barrett Burston Malting Co 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.

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. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

I note that the agreement title provided for on the Notice of Employee Representational Rights differed from that of the Agreement. Pursuant to s.188(2), I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural error made. I am satisfied that the employees covered by the Agreement were 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.

Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

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.

I observe that certain provisions of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 7.3 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

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 was approved on 16 January 2023 and, in accordance with s.54, will operate from 23 January 2023. The nominal expiry date of the Agreement is 30 June 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the recent matter of Barrett Burston Malting Co. Pty. Ltd. T/A Barrett Burston Malting Co Pty Ltd, the Australian Industrial Relations Commission was tasked with approving the proposed Enterprise Agreement between the employer and its employees. The dispute centred around the terms and conditions of employment for workers in the malting industry. The Commission was required to determine whether the agreement met the necessary criteria for approval under the Fair Work Act 2009.

The primary legal issue before the Commission was whether the proposed agreement was a "better off overall test" agreement, meaning that it provided employees with a fairer balance of terms and conditions than their existing entitlements. The Commission also had to consider whether the agreement was in compliance with the "good faith" requirement and whether it contained any unfair provisions that would not be in the best interest of the employees. Additionally, the Commission assessed whether the agreement had been fairly negotiated and whether it allowed for adequate consultation and representation of the employees.

The Commission found that the proposed Enterprise Agreement met the necessary criteria for approval. The agreement was deemed to be a "better off overall test" agreement, as it provided employees with improved terms and conditions compared to their existing entitlements. Furthermore, the Commission concluded that the agreement was in compliance with the "good faith" requirement, as it had been fairly negotiated and allowed for adequate consultation and representation of the employees. No unfair provisions were identified that would not be in the best interest of the employees. As a result, the Commission approved the Barrett Burston Malting Company Pty Ltd (Geelong) Enterprise Agreement 2022.

The final orders of the Commission were to approve the proposed Enterprise Agreement between Barrett Burston Malting Co. Pty. Ltd. and its employees, effective from 1 July 2022. The approval was subject to the agreement being registered with the Fair Work Commission within the specified timeframe. The employees covered by the agreement would now benefit from the improved terms and conditions set out in the approved Enterprise Agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established