Bartter Enterprises Pty Ltd

[2019] FWCA 5838

[2019] FWCA 5838

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Bartter Enterprises Pty Ltd
(AG2019/2677)

APPLICATION FOR APPROVAL OF THE BARTTER ENTERPRISES PTY LTD HANWOOD PLANT (PRODUCTION, DISTRIBUTION AND RENDERING EMPLOYEES) ENTERPRISE AGREEMENT 2019-2023

Poultry processing
DEPUTY PRESIDENT BULL	SYDNEY, 22 AUGUST 2019

Application for approval of the Bartter Enterprises Pty Ltd Hanwood Plant (Production, Distribution and Rendering Employees) Enterprise Agreement 2019-2023.

[1] An application (Form F16) has been filed by Bartter Enterprises Pty Ltd(the applicant) for the approval of an enterprise agreement known as the Bartter Enterprises Pty Ltd Hanwood Plant (Production, Distribution and Rendering Employees) Enterprise Agreement 2019-2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement as per s.172(2) of the Act.

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

[3] The Australasian Meat Industry Employees’ Union NSW Branch (AMIEU), 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 the organisation.

[4] Section 186(2)(c) of the Act states that the Commission must be satisfied, before approving an agreement, that terms of an agreement do not contravene s.55 of the Act, which provides that an agreement must not exclude a provision of the National Employment Standards (NES). 1

[5] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

•  Clause 26.4.2 of the Agreement states that in normal circumstances an employee is not entitled to take carer’s leave where another person has taken leave to care for the same person. This appears to be inconsistent with s.97(b) of the Act.

•  Clause 26.8.1 of the Agreement states that if it is not practicable for the employee to give prior notice of absence, the employee shall notify of such absence at the first opportunity on the day of the absence. This appears to be inconsistent with s.107(2)(a) of the Act.

•  Clause 26.9 of the Agreement states that an employee shall establish by production of a medical certificate the illness or the nature of the emergency of the person requiring care. This appears to expand on the evidence required at s.107(c) of the Act.

•  Clause 13.4.5(a) of the Agreement provides that casual employees are entitled to not be available to attend work upon the death in Australia of an immediate family member. This may be inconsistent with s.104 of the Act which does not restrict compassionate leave to a death in Australia.

[6] Clause 4.3 of the Agreement, however, specifically incorporates the NES, and states that if there is any inconsistency between the NES and the terms of the Agreement, the terms more beneficial to the employee apply. I am therefore satisfied, as required by s 186(2)(c) of the Act, that the terms of the Agreement do not contravene s.55 of the Act.

[7] It is further noted that s.56 of the Act provides that any NES-offending provisions in an agreement cannot have effect.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval. The nominal expiry date of the Agreement is 16 July 2023.

DEPUTY PRESIDENT

 1 See s.55(1) of the Fair Work Act 2009

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