Bartter Enterprises Pty Ltd Summary

[2025] FWCA 1183

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Bartter Enterprises Pty Ltd

(AG2025/789)

BARTTER ENTERPRISES PTY LIMITED CARDIFF FEEDMILL AND BERESFIELD FEEDMILL ENTERPRISE AGREEMENT 2025-2029

Food, beverages and tobacco manufacturing industry
DEPUTY PRESIDENT SLEVIN	SYDNEY, 7 APRIL 2025

An application has been made by Bartter Enterprises Pty Ltd (Applicant) for approval of an enterprise agreement known as the Bartter Enterprises Pty Limited Cardiff Feedmill and Beresfield Feedmill Enterprise Agreement 2025-2029 (Agreement). The Application is made pursuant to s. 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement. The Commission must approve the agreement if the requirements in ss. 186 and 187 of the Act are met.

A concern was raised that Clause 28.1 of the Agreement purported to limit the circumstances in which redundancy benefits were available in a way that was inconsistent with the Act. In response the Applicant offered an undertaking which, in form, seeks to vary the agreement to delete the part of the clause in issue. An undertaking may be accepted to address a concern raised during the approval process in accordance with s. 190. However, an undertaking cannot effect a deletion in the same way a variation (under s.217) or a correction (under s.218A) may do. As the undertaking is not in the correct form, I do not accept it for the purposes of s. 190.

The Agreement does have an NES precedence clause at clause 5.2. The clause provides that where there is an inconsistency between the Agreement and the NES, the NES will apply. This provision will have work to do in the circumstances of redundancy such that the NES will apply.

Having regard to the information contained in the application and filed in relation to it, I am satisfied that each of the requirements of ss. 186 and 187 are met.

The United Workers Union (UWU) were a bargaining representative for the Agreement. They support the application for approval. The union have given notice under s. 183 of the Act that they want the Agreement to cover them. In accordance with s. 201(2) of the Act, I note the Agreement covers the UWU.

The Agreement is approved on 7 April 2025. The operative date of the Agreement will be seven days from the date of this decision in accordance with s.54 of the Act. The nominal expiry date is 11 March 2029.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Bartter Enterprises Pty Ltd applied to the Fair Work Commission for approval of a single-enterprise agreement, the Bartter Enterprises Pty Limited Cardiff Feedmill and Beresfield Feedmill Enterprise Agreement 2025-2029. The agreement sought approval under section 185 of the Fair Work Act 2009. The application was made on the basis that the agreement met the requirements of sections 186 and 187 of the Act. The application was supported by the United Workers Union, who were a bargaining representative for the agreement and had given notice under section 183 of the Act that they wished the agreement to cover them. The agreement covered the union in accordance with section 201(2) of the Act. A concern was raised that Clause 28.1 of the agreement purported to limit the circumstances in which redundancy benefits were available in a way that was inconsistent with the Act. The applicant offered an undertaking to vary the agreement to delete the part of the clause in issue. However, the undertaking was not in the correct form to be accepted under section 190 of the Act.

The legal issues before the Deputy President were whether the agreement met the requirements of sections 186 and 187 of the Act and whether the concern about Clause 28.1 could be resolved in a way that would allow the agreement to be approved. The Deputy President found that the agreement did meet the requirements of sections 186 and 187 of the Act. The undertaking offered by the applicant could not be accepted under section 190 of the Act because it was not in the correct form. However, the agreement did contain an NES precedence clause at clause 5.2. This clause provided that where there was an inconsistency between the agreement and the NES, the NES would apply. This provision would have effect in the circumstances of redundancy such that the NES would apply.

The Deputy President approved the agreement on 7 April 2025. The operative date of the agreement would be seven days from the date of the decision in accordance with section 54 of the Act. The nominal expiry date was 11 March 2029. The Deputy President found that the agreement met the requirements of sections 186 and 187 of the Act and that the concern about Clause 28.1 could be resolved by the NES precedence clause. The agreement was therefore approved.

Bartter Enterprises Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established