Bega Cheese Limited

[2020] FWCA 1062

[2020] FWCA 1062

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Bega Cheese Limited
(AG2019/4390)

BEGA CHEESE LIMITED NSW ENTERPRISE AGREEMENT 2019

Food, beverages and tobacco manufacturing industry
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 27 FEBRUARY 2020

Application for approval of the Bega Cheese Limited NSW Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Bega Cheese Limited NSW Enterprise Agreement 2019 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Bega Cheese Limited (Employer). The Agreement is a single enterprise agreement.

[2] The Notice of Employee Representational Rights (Notice) issued by the Employer was not in the form prescribed by the Fair Work Regulations 2009. Rather, it was in a form that has been superseded. Further, the Notice erroneously referred to the Agreement as the “Bega Cheese Employees and Unions Enterprise Agreement 2016.”

[3] Having regard to the Employer’s written submissions, I am satisfied that these matters constitute minor procedural or technical errors and employees covered by the Agreement were not likely to have been disadvantaged by these errors. Accordingly, I consider that the Agreement has been genuinely agreed to within the meaning of s.188(2) of the Act. 1

[4] 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.

[5] Subject to the undertakings, 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 undertakings are taken to be a term of the Agreement.

[6] I observe that the following provisions 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:

•  Clause 31 of the Agreement, which provides that where an employee is paid for a period of parental leave, and the employee does not return to work in some capacity for at least three months, then the employee agrees to repay the sum received, either directly or by way of an authorised deduction;

•  Clause 35 of the Agreement, which provides that where an employee is absent without leave or reasonable excuse on the working day before or after a public holiday, then the employee shall forfeit wages for such holiday; and

•  Clause 46(b) of the Agreement, which provides that in circumstances of abandonment of employment an employee may be terminated without notice.

[7] The Australasian Meat Industry Employees Union, “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2), I note that the Agreement covers the organisations.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 5 March 2020. The nominal expiry date of the Agreement is 12 July 2022.

DEPUTY PRESIDENT

Annexure A

 1  Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[2019] FWCFB 318.

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