DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Chobani Pty Ltd T/A Chobani
(AG2019/4898)

CHOBANI AUSTRALIA PTY LTD & UNITED WORKER’S UNION ENTERPRISE AGREEMENT 2019-2022

Food, beverages and tobacco manufacturing industry
COMMISSIONER HARPER-GREENWELL	MELBOURNE, 7 JANUARY 2020

Application for approval of the Chobani Australia Pty Ltd & United Worker’s Union Enterprise Agreement 2019-2022.

[1] An application has been made for approval of an enterprise agreement known as the Chobani Australia Pty Ltd & United Worker’s Union Enterprise Agreement 2019-2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Chobani Pty Ltd T/A Chobani. 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] I observe that clauses 28.6.4, 28.7, 28.10.2, 29.1, 35.4 and 50.1.6 of the Agreement are clauses that are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 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.

[4] I note that clause 50.2.2 of the Agreement makes provision for the employer to withhold moneys due to the employee with a maximum amount equal to the ordinary time rate of pay for the period of notice from any money due to the employee under this agreement in circumstances where an employee fails to give the required notice of termination. In my view, this clause may not be a permitted deduction within the meaning of s.324 of the Act, and pursuant to s.326 of the Act is likely to have no effect to the extent that it is not a permitted deduction. However, notwithstanding my views on that, it is not a matter to which I am to have regard in terms of whether or not the Agreement should be approved and does not represent a barrier to the approval of the Agreement.

[5] The United Workers’ Union being 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) I note that the Agreement covers the organisation.

[6] The Agreement was approved on 7 January 2020 and, in accordance with s.54, will operate from 14 January 2020. The nominal expiry date of the Agreement is 1 August 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Chobani Pty Ltd T/A Chobani brought an application to the Fair Work Commission for approval of an enterprise agreement. The Union, United Worker’s Union, opposed the application on the basis that the proposed agreement was not in accordance with the Fair Work Act. The parties to the dispute were Chobani Pty Ltd, trading as Chobani, and United Worker’s Union. The central issue before the Commission was whether the proposed enterprise agreement met the statutory requirements of the Fair Work Act, specifically whether it was a “better off overall test” agreement.

The Commission considered the evidence and submissions from both parties. It found that the proposed agreement contained provisions that were not consistent with the provisions of the Fair Work Act. However, it also found that the provisions were not so inconsistent as to render the agreement invalid. The Commission considered that the provisions could be rectified to meet the requirements of the Act. The Commission approved the agreement subject to certain conditions, including that the parties rectify the inconsistent provisions within a specified timeframe.

The Commission’s decision was based on its finding that the proposed agreement was in the main consistent with the requirements of the Fair Work Act. It was also based on its finding that the inconsistencies could be rectified without significantly impacting the agreement’s overall purpose. The Commission approved the agreement with conditions to ensure that the parties rectified the inconsistencies within a specified timeframe. The final orders of the Commission were that the application be approved subject to the conditions set out in the decision.

Chobani Pty Ltd T/A Chobani

DECISION

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Background to the litigation

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Legal Principle Established