BPL Adelaide Pty Ltd T/A BPL Adelaide Pty Ltd

[2020] FWCA 3889

[2020] FWCA 3889

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

BPL Adelaide Pty Ltd T/A BPL Adelaide Pty Ltd
(AG2020/1981)

BPL ADELAIDE PTY LIMITED (PRODUCTION AND DISTRIBUTION EMPLOYEES) ENTERPRISE AGREEMENT 2020 - 2024

Poultry processing
COMMISSIONER PLATT	ADELAIDE, 27 JULY 2020

Application for approval of the BPL Adelaide Pty Limited (Production and Distribution Employees) Enterprise Agreement 2020 - 2024.

[1] An application has been made for approval of an enterprise agreement known as the BPL Adelaide Pty Limited (Production and Distribution Employees) Enterprise Agreement 2020 – 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by BPL Adelaide Pty Ltd T/A BPL Adelaide Pty Ltd (the Applicant). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 23 July 2020.

[3] It is noted that there are several Clauses that appear to be inconsistent with the National Employment Standards (NES):

● Clause 14.4.6 (Casual Employment Caring Responsibilities) appears to be more restrictive than the NES as it provides that a casual employee is entitled to not be available to work upon the death in Australia of an immediate family member or household member, while the NES does not provide a geographic limitation for leave in relation to death.
● Clause 27.8 (Compassionate Leave) appears to be inconsistent with section 107 of the Act as it provides that if it is not practicable for the employee to give prior notice of absence, the employee shall notify the Company by telephone of such absence at the first opportunity on the day of absence. The NES does not restrict the method of communication. In addition, s.107(5) does not appear to operate to permit such a term.
● Clause 27.9 (Parental Leave) appears inconsistent with section 107 of the Act as it provides that the supporting documentation for carers leave must be acceptable to the company, while the NES requires the documentation satisfy a reasonable person.

[4] However, the NES precedence clause contained in Clause 4.3 of the Agreement, provides that where there is an inconsistency between the Agreement and the NES, and the NES provides a greater benefit, the NES will apply to the extent of the inconsistency. This clause will operate to remove the more restrictive requirements detailed above, and accordingly I am of the view that the requirements of s.55 of the Act (in this regard) has been met.

[5] The United Workers Union, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers this organisation.

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

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 5 March 2024.

COMMISSIONER

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