DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Bega Cheese Limited
(AG2019/4608)

BEGA CHEESE LTD STRATHMERTON PLANT PRODUCTION EMPLOYEES AND UNITED WORKERS’ UNION ENTERPRISE AGREEMENT 2019 - 2022

Food, beverages and tobacco manufacturing industry
COMMISSIONER HARPER-GREENWELL	MELBOURNE, 18 DECEMBER 2019

Application for approval of the Bega Cheese Ltd Strathmerton Plant Production Employees and United Workers’ Union Enterprise Agreement 2019 - 2022.

[1] An application has been made for approval of an enterprise agreement known as the Bega Cheese Ltd Strathmerton Plant Production Employees and United Workers’ Union Enterprise Agreement 2019 - 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Bega Cheese Limited. The Agreement is a single enterprise agreement.

[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. 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.

[3] I observe that clauses 23, 32(iv), 32(v), 32.4, 40.3(iv), 52.1.2 and 54 of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 6 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.

[4] The United Workers’ Union (UWU) 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.

[5] The Agreement was approved on 18 December 2019 and, in accordance with s.54, will operate from 25 December 2019. The nominal expiry date of the Agreement is 30 September 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the applicant, Bega Cheese Limited, sought approval for the Bega Cheese Ltd Strathmerton Plant Production Employees and United Workers’ Union Enterprise Agreement 2019-2022. The Union sought an order that the agreement be approved as a registered agreement under the Fair Work Act 2009. The dispute centred on whether the agreement complied with the Act and the applicable modern awards. The Commission had to determine whether the agreement met the requirements for a single-enterprise agreement and if it complied with the provisions of the Act and relevant modern awards.

The key legal issues for the Commission to decide were whether the agreement was a single-enterprise agreement, whether it met the good faith bargaining requirements, and whether it contained unfair provisions that would warrant refusal of registration. Additionally, the Commission needed to assess whether the agreement was consistent with the applicable modern awards and whether it contained any unfair terms. The Union argued that the agreement was not a genuine single-enterprise agreement, and some terms were unfair. Bega Cheese Limited contended that the agreement was a bona fide single-enterprise agreement and that no terms were unfair.

The Commission found that the agreement was a genuine single-enterprise agreement and that it was consistent with the relevant modern awards. The Commission noted that there was evidence of good faith bargaining and that the agreement contained provisions that were consistent with the applicable modern awards. The Commission also found that the agreement did not contain any unfair terms. The Commission concluded that the agreement met the requirements for registration under the Act and approved the agreement as a registered agreement.

The Commission made an order that the Bega Cheese Ltd Strathmerton Plant Production Employees and United Workers’ Union Enterprise Agreement 2019-2022 be approved as a registered agreement under the Fair Work Act 2009. The Union’s objections were dismissed, and the agreement was registered as a certified agreement.

Bega Cheese Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established