Co-Operative Bulk Handling Limited

[2024] FWCA 4466

[2024] FWCA 4466

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s 185—Enterprise agreement

Co-Operative Bulk Handling Limited

(AG2024/4179)

CBH ESPERANCE PLANT OPERATOR UNION COLLECTIVE AGREEMENT 2024

Grain handling industry
COMMISSIONER LIM	PERTH, 12 DECEMBER 2024

Application for approval of the CBH Esperance Plant Operator Union Collective Agreement 2024.

1. Co-Operative Bulk Handling Limited (the Applicant) has made an application for the approval of an enterprise agreement known as the CBH Esperance Plant Operator Union Collective Agreement 2024 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.

1. The Applicant has provided written undertakings. A copy of the undertakings 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 the undertakings will not result in substantial changes to the Agreement.

1. In compliance with s 190(4) of the Act, the bargaining representatives’ views regarding the undertakings proffered were sought. They were provided with the opportunity to raise and address any objections they had to the undertakings proffered by the Applicant. No substantive objection was raised.

1. Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declarations, I am satisfied that each of the requirements of ss 186, 187, 188, and 190 of the Act as are relevant to this application for approval have been met.

1. I note that the following clauses in the Agreement appear to be inconsistent with the National Employment Standards (NES):

(a)Clause 17.4 of the Agreement provides that severance pay is not payable where the employer finds suitable alternative employment; however, the provision does not appear to be subject to an application to the Fair Work Commission in accordance with s 120 of the Act.

(b)Clause 18.2 of the Agreement appears to provide that ordinary hours may be worked on public holidays. This appears to require employees to work on public holidays as rostered. This may not be consistent with s 114 of the Act.

(c)Clause 22.4 of the Agreement provides that part-time employees are entitled to pro rata compassionate leave whereas s 104 of the Act provide two days leave per permissible occasion.

(d)Clause 13.11 makes reference to casual employees being entitled to paid leave under the Agreement, but there is no analogous reference for full-time and part-time employees. I note Section 106A of the Act provides for paid family and domestic violence leave for all employees.

1. However, I am satisfied that under clause 7.3 of the Agreement, the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Agreement contains a delegates’ rights term, as required by s 205A(1) of the Act, however, the parties agreed that the clause is more restrictive and thus less favourable than the workplace delegates’ rights term in the applicable award. Accordingly, under s 205A(2) of the Act, Clause 29A of the Storage Services and Wholesale Award 2020 is taken to be a term of the Agreement.

1. The Australian Workers’ Union (the organisation), 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), and based on the declaration provided by the organisation, I note that the organisation is covered by the Agreement.

1. The Agreement was approved on 12 December 2024 and, in accordance with s 54, will operate from 19 December 2024. The nominal expiry date of the Agreement is 1 March 2028.

COMMISSIONER

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Annexure A