Burles Consulting Pty Ltd

[2024] FWCA 502

[2024] FWCA 502

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Burles Consulting Pty Ltd

(AG2024/44)

NICHOLS POULTRY PROCESSING ENTERPRISE AGREEMENT 2023

Poultry processing
COMMISSIONER MIRABELLA	MELBOURNE, 6 FEBRUARY 2024

Application for approval of the Nichols Poultry Processing Enterprise Agreement 2023.

1. Burles Consulting Pty Ltd has made an application on behalf of Nichols Poultry Pty Ltd (the Employer) for approval of an enterprise agreement known as the Nichols Poultry Processing 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 2 August 2023 and the Agreement was made on 29 December 2023. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

1. The Employer has provided a written undertaking. A copy of the undertaking is attached in Annexure A. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement. The undertaking is taken to be a term of the Agreement.

1. Subject to the undertaking referred to above, and 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, 188 and 190, 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 5.5: Casual conversion

·   Clause 17.4: Compassionate leave

·   Clause 26.2(b): Withholding monies at termination

·   Clause 27.4: Redundancy

1. However, noting clause 4.2 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. The United Workers’ Union, 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 organisation.

1. The Agreement was approved on 6 February 2024 and, in accordance with s.54, will operate from 13 February 2024. The nominal expiry date of the Agreement is 30 June 2025.

COMMISSIONER

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Annexure A