Berry Pays Pty Ltd - [2022] FWC 913

[2022] FWC 913

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Berry Pays Pty Ltd

(AG2022/99)

COMMISSIONER LEE

MELBOURNE, 9 MAY 2022

Application for approval of the Berry Pays Pty Limited Enterprise Bargaining Agreement, 2021 – voluntary additional hours – ‘better off overall test’ not met – s.189 considered – not satisfied exceptional circumstances – not satisfied approval would not be contrary to the public interest – application dismissed.

An application has been made for approval of an enterprise agreement known as the Berry Pays Pty Limited Enterprise Bargaining Agreement, 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Berry Pays Pty Ltd (the Applicant). The Agreement is a single enterprise agreement. The AWU opposes the approval of the Agreement.

Background

On 18 January 2022, the Australian Workers’ Union (AWU) emailed the Fair Work Commission to request the relevant documents filed with the application and indicated that it wished to be heard.

On 15 February 2022 this matter was allocated to my Chambers. On 17 February 2022, my Chambers emailed the AWU seeking submissions to assist in my consideration as to whether the AWU should be heard in relation to the application. The AWU provided its response, and I subsequently sought the views of the Applicant regarding whether the AWU should be heard. I considered the submissions of both the AWU and the Applicant on this point. On 8 March 2022, my Chambers sent an email to the parties indicating that I have determined that the AWU will be heard on the matter as a contradictor. The AWU was subsequently provided the unredacted application, supporting documentation and correspondence.

Also on 17 February 2022, the Applicant and employee bargaining representatives were sent an email identifying numerous concerns in relation to the Agreement and supporting documentation. The concerns included the following:

· Agreement signature page: The Agreement signature page did not comply with s.185(2) of the Act and reg 2.06A of the Fair Work Regulations 2009.

· Voting cohort: Further information was required to determine whether all of the casual employees that were included in the voting cohort were employed at the time of the access period.

· Section 180(3) and 180(5): There was insufficient information to be satisfied that all reasonable steps had been taken to notify the relevant employees of the voting details as required by s.180(3) of the Act. Furthermore, there was insufficient information to be satisfied that all reasonable steps had been taken to explain the Agreement as required by s.180(5) of the Act.

· Flexibility term: The flexibility term in the Agreement did not comply with s.203 of the Act.

The correspondence also raised a number of BOOT concerns about the Agreement, and these are dealt with in more detail below.

Better Off Overall Test (BOOT) concerns

The relevant Award for the application of the BOOT at test time is the Horticulture Award 2020 (the Award). The rates of pay in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Berry Pays Pty Ltd [2022] FWC 913
Case: [2022] FWC 913
Decision Date

CaseChat Overview and Summary

This was an application by Berry Pays Pty Ltd for approval of an enterprise agreement. The Australian Workers’ Union opposed the approval of the agreement. The applicant sought approval of the agreement under section 186 of the Fair Work Act 2009. The Commissioner held that the agreement did not pass the better off overall test, and the application was dismissed. The applicant also sought approval of the agreement under section 189 of the Fair Work Act 2009. The Commissioner held that the applicant had not satisfied the Commission that there were exceptional circumstances and that approval of the agreement would not be contrary to the public interest. The applicant’s application under section 189 was also dismissed.

Orders