Brownes Foods Operations Pty Ltd

[2020] FWCA 5023

[2020] FWCA 5023

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Brownes Foods Operations Pty Ltd
(AG2020/2644)

BROWNES FOODS OPERATIONS PTY LTD OPERATIONS AGREEMENT 2020 - 2023

Food, beverages and tobacco manufacturing industry
COMMISSIONER HARPER-GREENWELL	MELBOURNE, 17 SEPTEMBER 2020

Application for approval of the Brownes Foods Operations Pty Ltd Operations Agreement 2020 - 2023.

[1] An application has been made for approval of an enterprise agreement known as the Brownes Foods Operations Pty Ltd Operations Agreement 2020 - 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Brownes Foods Operations Pty Ltd. The Agreement is a single enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[3] The Employer did not notify employees of the time, place and method of voting seven clear days before the commencement of the voting process. Nevertheless, in the circumstances, I am satisfied that this constitutes a minor procedural or technical error for the purposes of s.188(2)(a). Further, having regard to the content of the statutory declaration I am satisfied that the employees covered by the agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188(2) of the Act.

[4] I observe that clause 32.1 of the Agreement is likely to be inconsistent with the National Employment Standards (NES). However, noting clause 3.4 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[5] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and Transport Workers’ Union of Australia (TWU) being bargaining representatives for the Agreement, have given notice under s.183 of the Act that it wants the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the organisations.

[6] The Agreement was approved on 17 September 2020 and, in accordance with s.54, will operate from 24 September 2020. The nominal expiry date of the Agreement is 31 May 2023.

COMMISSIONER

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