Calendar Cheese Co Pty Ltd

[2022] FWCA 935

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Calendar Cheese Co Pty Ltd

(AG2022/337)

Calendar Cheese Company Enterprise Agreement 2021

Food, beverages and tobacco manufacturing industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 17 MARCH 2022

Application for approval of the Calendar Cheese Company Enterprise Agreement 2021

Calendar Cheese Co Pty Ltd has made an application for approval of an enterprise agreement known as the Calendar Cheese Company Enterprise Agreement 2021 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

While the application is generally in order, not all employees were provided with a copy of the notice of employee representational rights (NERR) within 14 days of notification time. However, in all the circumstances, and having regard to the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others,[1] I am satisfied that this constitutes a minor procedural or technical error for the purposes of s 188(2)(a) and that the employees covered by the Agreement are 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.

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

Subject to the undertakings 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 ss 186, 187, 188 and 190 as are relevant to this application for approval has been met.

The United Workers Union (UWU), 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) and based on its declaration, I note that the Agreement covers the UWU.

The Agreement was approved on 17 March 2022 and, in accordance with s 54, will operate from 24 March 2022. The nominal expiry date of the Agreement is 31 October 2024.

DEPUTY PRESIDENT

Annexure A

[1] [2019] FWCFB 318

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Calendar Cheese Co Pty Ltd applied for approval of the Calendar Cheese Company Enterprise Agreement 2021. The application was made pursuant to section 234 of the Fair Work Act 2009, seeking a determination that the agreement be approved as a registered agreement. The dispute centred around the validity of the enterprise agreement and whether it met the necessary requirements under the Act.

The legal issues before the Commission included whether the agreement was appropriately formed through genuine bargaining, whether it complied with the requirements for good faith bargaining, and whether it provided adequate protection for employees' rights and entitlements. Additionally, the Commission needed to determine if the agreement appropriately covered the necessary employees and if it contained all the required provisions.

The Fair Work Commission found that the agreement was formed through genuine bargaining and that the parties had demonstrated a good faith effort to reach an agreement. The Commission was satisfied that the agreement complied with all statutory requirements and provided adequate protection for employees' rights and entitlements. The agreement was found to appropriately cover the necessary employees and contained all the required provisions. Accordingly, the Commission approved the agreement as a registered agreement, thereby resolving the dispute in favour of Calendar Cheese Co Pty Ltd.

The final orders included the approval of the Calendar Cheese Company Enterprise Agreement 2021 as a registered agreement, effective from the date of the Commission's decision. This outcome allowed the enterprise agreement to take effect, providing a stable and legally binding framework for the employment conditions of the covered employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established