Berri Pty Limited

[2024] FWCA 3199

[2024] FWCA 3199

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Berri Pty Limited

(AG2024/3066)

BEGA SMITHFIELD ENTERPRISE AGREEMENT 2024

Food, beverages and tobacco manufacturing industry
DEPUTY PRESIDENT GRAYSON	SYDNEY, 6 SEPTEMBER 2024

Application for approval of the Bega Smithfield Enterprise Agreement 2024

Introduction

1. Berri Pty Limited (the Employer) has made an application for approval of an enterprise agreement known as the Bega Smithfield Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Transitional arrangements under the Secure Jobs, Better Pay amendment

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 23 January 2024 and the Agreement was made on 30 July 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

National Employment Standards (NES) Precedence Term

1. Clause 25.5 states that ‘Nothing in this Agreement will prevent a mutual agreement being reached between a Team Member and the Company for the required period of notice to be waived, reduced or increased.’ This may not be an enforceable term to the extent that it might otherwise permit agreement being reached to reduce notice to less than the National Employment Standards (NES).

1. Clause 25.9 provides that where an Employee is absent from work for a continuous period of 3 working days without notifying the Company or obtaining prior consent to such absence, this will constitute abandonment of employment. This clause may be inconsistent with the NES requirements that:

a)An employer must not terminate an employee’s employment without written notice of termination (at s.117(1) of the Act); and,

b)An employer must not terminate an employee’s employment without paying any applicable notice in lieu (excluding in circumstances of serious misconduct).[1]

1. I note that in accordance with the NES precedence term in Clause 5 of the Agreement, these clauses will be read and interpreted in conjunction with the NES.

Section 190 Undertakings

1. The employer 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. The undertakings are taken to be a term of the Agreement.

Section 186, 187, 188 and 190

1. Subject to the undertakings referred to above, 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.

Section 183 Bargaining Representatives

1. The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it.

1. In accordance with s.201(2), I note that the Agreement covers the AMWU.

Approval

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 13 September 2024. The nominal expiry date of the Agreement is 3 March 2027.

DEPUTY PRESIDENT

ANNEXURE A

[1] Bienias v Iplex Pipelines Australia Pty Limited[2017] FWCFB 38 at [58]

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