Bartter Enterprises Pty Ltd

[2021] FWCA 4327

[2021] FWCA 4327

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Bartter Enterprises Pty Ltd
(AG2021/6033)

BARTTER ENTERPRISES PTY LIMITED (HATCHERY EMPLOYEES RIVERINA NSW) ENTERPRISE AGREEMENT 2021 – 2025

Poultry processing
DEPUTY PRESIDENT EASTON	SYDNEY, 21 JULY 2021

Application for approval of the Bartter Enterprises Pty Limited (Hatchery Employees Riverina NSW) Enterprise Agreement 2021 - 2025.

[1] Bartter Enterprises Pty Ltd (the Employer) has made an application for the approval of the Bartter Enterprises Pty Limited (Hatchery Employees Riverina NSW) Enterprise Agreement 2021 – 2025 (the Agreement). The application was made under s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] The Employer has provided a written undertaking, a copy of which are attached as Annexure A to this decision. The undertaking can be accepted under s.190 of the Act because I am satisfied that it will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement pursuant to s.191 of the Act.

[3] The undertaking arises from one remote scenario that the Employer acknowledges could result in an employee being paid less than the award, being where a casual employee is required to work on a Sunday other than for feeding and watering stock, where a 200% penalty applies under the Agreement compared to 225% Award overtime penalty. The Employer submits that the more likely scenario is that a casual employee works ordinary hours on a Sunday (in which case they would be paid 125% for the ordinary hours worked plus the 100% Sunday penalty per cl19.2.2 of the Agreement) and also receives employer superannuation contributions on the full 225% of pay. The Employer’s undertaking addresses this potential shortfall.

[4] Subject to the Employer’s undertakings, I am satisfied that each relevant requirement in sections 186, 187, 188 and 190 of the Act has been met.

[5] I note that Clause 14.4.4 – Casual conversion and Clause 21 – Overtime are potentially inconsistent with the National Employment Standards (NES). Clause 4.3 of the Agreement ensures that that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[6] The Australian Workers’ Union (AWU) was a bargaining representative for the Agreement and 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 AWU.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 28 July 2021. The nominal expiry date of the Agreement is 6 July 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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Annexure A