Burles Consulting Pty Ltd Summary

[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.

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.

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.

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.

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.

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

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.

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.

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

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the matter of the Fair Work Commission, Burles Consulting Pty Ltd sought approval for the Nichols Poultry Processing Enterprise Agreement 2023, which was to govern the employment terms of workers within the poultry processing industry. The application for approval was opposed by the Poultry Workers Union, which argued that the proposed agreement did not adequately address certain aspects of employee welfare, particularly regarding working hours, leave entitlements, and pay rates.

The primary legal issues before the Commission involved the interpretation and application of the Fair Work Act 2009. The Commission was required to determine whether the agreement met the criteria for 'simplification, clarity and accessibility' as required by section 234 of the Act, and whether it provided for the 'better off overall test' as mandated by section 235. Additionally, the Commission needed to assess whether the agreement adequately protected the rights and interests of the employees, particularly in the areas of working conditions and remuneration.

The Fair Work Commission found that the agreement largely complied with the statutory requirements. It noted that the agreement was clear and accessible, with provisions that were easy to understand for the employees. Regarding the better off overall test, the Commission concluded that employees would be better off with the new agreement compared to their previous conditions, as it provided for improved remuneration and some additional benefits. However, the Commission made several amendments to the agreement to address the concerns raised by the union, particularly in relation to working hours and leave entitlements. These changes ensured that employees would not be disadvantaged by the new agreement.

The Commission approved the Nichols Poultry Processing Enterprise Agreement 2023 with the specified amendments. The decision underscored the importance of balancing the interests of employers and employees while ensuring compliance with the Fair Work Act. The approved agreement was set to commence on the date of the decision, subject to the conditions outlined by the Commission.

Burles Consulting Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established