Boortmalt Australia Pty Ltd

[2024] FWCA 2487

[2024] FWCA 2487

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Boortmalt Australia Pty Ltd

(AG2024/2140)

BOORTMALT AUSTRALIA PTY LTD DELACOMBE OPERATOR ENTERPRISE AGREEMENT 2023

Food, beverages and tobacco manufacturing industry
COMMISSIONER MIRABELLA	MELBOURNE, 19 JULY 2024

Application for approval of the Boortmalt Australia Pty Ltd Delacombe Operator Enterprise Agreement 2023.

1. Boortmalt Australia Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Boortmalt Australia Pty Ltd Delacombe Operator Enterprise Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the FW Act). The Agreement is a single enterprise agreement.

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the FW Act, that commenced operation on 6 June 2023. The notification time for the Agreement was 17 March 2024 and the Agreement was made on 31 May 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

1. On the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of sections 186, 187 and 188, as are relevant to this application for approval, has been met.

1. I observe that the following provisions are likely to be inconsistent with the National Employment Standards (the NES):

• Clause 7.3: Compassionate leave

• Clause 11.1(c): Deduction/withholding of monies due to the employee under the NES on termination

1. However, noting clause 1.5 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. Section 188(1) of the FW Act requires the Commission to take into account the Statement of Principles on Genuine Agreement (Statement of Principles) made under s.188B in determining whether it is satisfied that an enterprise agreement has been genuinely agreed to by the employees covered by the agreement. Paragraph 16 of the Statement of Principles provides that employees should be informed of the time, place and method for the vote at least seven full calendar days before the day on which voting starts or such other reasonable agreed time. The voting commenced on 24 May 2024 and employees were notified of the time, place and method of vote on 21 May 2024.

1. I have considered several matters including but not limited to that employees had the opportunity to vote on the Agreement until 31 May 2024 and that all four employees covered by the Agreement cast a valid vote. I am convinced that the Agreement has been genuinely agreed to within the meaning of s.186(2)(a) of the FW Act.

1. The United Workers’ Union (the UWU), being a bargaining representative for the Agreement, has given notice under s.183 of the FW Act that it wants the Agreement to cover it. In accordance with s.201(2), and based on the declaration provided by the organisation, I note that the Agreement covers the UWU.

1. The Agreement was approved on 19 July 2024 and, in accordance with s.54 of the FW Act, will operate from 26 July 2024. The nominal expiry date of the Agreement is 30 December 2026.

Variation

1. On 21 June 2024, my chambers notified parties that page 13 of the Agreement appeared to contain referencing errors in relation to ‘Wage Rates and Related Matters’ and that two clauses in the Agreement were numbered ‘4.1’.

1. On 9 July 2024, the UWU sought that the Agreement be varied pursuant to s.218A, submitting that the clause titled ‘Wage Rates and Related Matters’ on page 13 should clearly be numbered ‘5.1’, and not ‘4.1’, and that this is an obvious error, defect or irregularity.

1. I am satisfied that this referencing error is an obvious error, defect or irregularity and I will amend the Agreement accordingly pursuant to s.218A of the FW Act.

1. The variation will operate from 19 July 2024.

COMMISSIONER

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