Bundaberg Sugar Ltd

[2021] FWCA 1674

[2021] FWCA 1674

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Bundaberg Sugar Ltd
(AG2021/4076)

BUNDABERG SUGAR LTD REGIONAL FARMS ENTERPRISE AGREEMENT 2021

Sugar industry
COMMISSIONER BOOTH	BRISBANE, 30 MARCH 2021

Application for approval of the Bundaberg Sugar Ltd Regional Farms Enterprise Agreement 2021.

[1] An application has been made under s.185 of the Fair Work Act 2009 (the Act) by Bundaberg Sugar Ltd (the Applicant) for approval of the Bundaberg Sugar Ltd Regional Farms Enterprise Agreement 2021 (the Agreement). The Agreement is a single enterprise agreement.

[2] Mr Stephen Kenneth Baker, Queensland Branch Secretary of the Australian Workers’ Union (the AWU), filed a Form F18 in this matter, advising that the AWU supports approval of the Agreement by the Commission, and providing notice under s.183 of the Act that it wants the Agreement to cover it.

[3] Correspondence was sent to the Applicants on 18 March 2021, raising certain concerns in relation to the Agreement and seeking responses and undertakings from the Applicant. The Applicant filed submissions and undertakings addressing the concerns raised on 22 March 2021. The AWU was provided with copies of the response and proposed undertakings.

[4] The matter was listed for eHearing on 29 March 2021. Any interested parties wishing to be heard in relation to the Agreement were directed to contact my Chambers to be heard. No parties contacted my Chambers.

[5] The undertakings meet the requirements of s.190(3) of the Act and I have accepted them. As a result, the undertakings are then to be a term of the Agreement and are attached to this Decision as Attachment A.

[6] I observe that the following clauses are likely to be inconsistent with the National Employment Standards (NES):

•  Clause 4.7.2(e) – Termination

•  Clause 7.2.9 – Compassionate leave

•  Clause 7.2.12 – Personal leave

•  Clause 7.5.1 – Annual leave

•  Clause 7.12.3 – Community Service Leave

[7] However, noting the NES precedence provision at clause 1.7, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[8] Concerns were raised in relation to clause 4.7.3of the Agreement as prima facie, the clause appeared to provide for unlawful deductions. In accordance with s.326(1) of the Act, I note that an unlawful term has no effect.

[9] Subject to the matters raised at paragraphs [2]-[8], 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.

[10] In accordance with s.201(2), I note that the Agreement covers the AWU.

[11] The Agreement is approved and, in accordance with s.54 of the Act and clause 1.3 of the Agreement, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 30 March 2025.

COMMISSIONER

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Attachment A.