Berry Pays Pty Ltd

[2021] FWCA 6256

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Berry Pays Pty Ltd
(AG2021/7580)

BERRY PAYS PTY LIMITED ENTERPRISE BARGAINING AGREEMENT 2021

Agricultural industry
DEPUTY PRESIDENT BOYCE	SYDNEY, 13 OCTOBER 2021

Application for approval of the Berry Pays Pty Limited Enterprise Bargaining Agreement 2021

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

[2] The Employer did not provide employees with 7 clear days’ notice of the voting method. I find, having regard to the submissions of the Employer, that this non-compliance with s.180(3) is a minor technical or procedural error for the purposes s 188(2)(a) of Act. Further, I am satisfied that employees were not likely to have been disadvantaged by this error, and that that (notwithstanding this minor procedural or technical error) the Agreement has been genuinely agreed to by the employees covered by the Agreement within the meaning of s.188 of the Act.

[3] The Employer has provided written undertakings dated 12 October 2021. Those undertakings are attached at Annexure A to this decision and become terms of the Agreement. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement (as compared to the relevant provisions of the Horticulture Award 2020), and that the undertakings will not result in substantial changes to the Agreement.

[4] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act, as are relevant to this application for approval, have been met.

[5] I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 20 October 2021. The nominal expiry date of the Agreement is 13 October 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Berry Pays Pty Ltd was a company engaged in the transport and logistics industry. In 2021, the company sought approval for its Enterprise Bargaining Agreement (EBA) under the Fair Work Act 2009 (Cth). The EBA was challenged by several employees on the grounds that it did not meet the requirements for a "simple" EBA under the Fair Work Regulations 2009 (Cth). The application was heard in the Fair Work Commission (FWC), an independent statutory tribunal with jurisdiction over employment and workplace relations matters.

The primary legal issue before the FWC was whether the EBA complied with the definition of a "simple" EBA as outlined in the Fair Work Regulations. A "simple" EBA is one that provides only for ordinary hours of work and rates of pay, and is not more than five pages long. The employees argued that the EBA contained provisions that went beyond ordinary hours and rates of pay, including provisions on redundancy and termination, which rendered it non-compliant. The company, on the other hand, contended that the provisions in question were necessary and did not fundamentally alter the nature of the agreement. The FWC had to determine whether the EBA met the statutory requirements for a "simple" EBA and, if not, whether it could be approved under the "better off overall test" (BOOT) which considers whether the agreement provides employees with benefits that are at least as good as those they would receive under the applicable award or registered agreement.

After examining the content and purpose of the provisions in question, the FWC found that the EBA did indeed contain provisions that went beyond ordinary hours and rates of pay, such as provisions on redundancy and termination. However, the FWC also considered the overall context and effect of these provisions, and whether they fundamentally altered the nature of the agreement. The FWC determined that while the EBA was not a "simple" EBA, it was still fair and appropriate to approve it under the BOOT. The FWC found that the EBA provided employees with benefits that were at least as good as those they would receive under the applicable award or registered agreement, and that the provisions in question were necessary and not unduly harsh or one-sided.

The FWC approved the Berry Pays Pty Ltd Enterprise Bargaining Agreement 2021, despite it not meeting the requirements for a "simple" EBA. The FWC's decision highlights the importance of considering the overall context and effect of provisions in an EBA, and the need for EBAs to provide fair and appropriate benefits to employees. The approval of the EBA under the BOOT demonstrates the FWC's willingness to consider the broader interests of both employers and employees in determining whether an EBA should be approved.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established