Coopers Brewery Limited T/A Coopers Brewery

[2022] FWCA 2787

[2022] FWCA 2787

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Coopers Brewery Limited T/A Coopers Brewery

(AG2022/3251)

Coopers Brewery Limited Enterprise Agreement 2022

Manufacturing and associated industries
COMMISSIONER PLATT	ADELAIDE, 17 AUGUST 2022

Application for approval of the Coopers Brewery Limited Enterprise Agreement 2022

1. An application has been made for approval of an enterprise agreement known as the Coopers Brewery Limited Enterprise Agreement 2022 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Coopers Brewery Limited T/A Coopers Brewery (the Applicant). The agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 10 August 2022.

1. On 12 August 2022, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

1. There are three National Employment Standards (NES) issues that require comment. Clause 1.6(c) of the Agreement provides an effective NES precedence clause, in that it states that in the event of an inconsistency between the Agreement and the NES, and the NES provides a greater benefit, the NES will apply to the extent of the inconsistency. As a result of the NES precedence clause, the clauses detailed below will not apply to the extent that they are inconsistent with the NES:

·   Clause 3.4 of the Agreement deals with the topic of redundancy. Clause 3.4(4)(A) provides an entitlement to severance pay of 1.5 weeks’ pay per completed six months of service in the case of “early retirement”. Accordingly, an employee with between 12 and 18 months service would receive 3 weeks’ pay for one completed year of service. The corresponding NES provision does not discern between voluntary and involuntary redundancies. In so far that the formula in clause 3.4(4)(A) results in a severance payment which is less than that provided for by the NES (at s.119(2) of the Act), the NES will apply.

·   Clause 5.5(j)(1) of the Agreement provides that the fifth week of leave for shiftworkers accrues monthly. Section 87(2) of the Act provides that annual leave accrues progressively. In so far as the formula in clause 5.5(j)(1) produces a result less than the progressive accrual required by the NES, the NES shall override the provision.

·   Clause 6.1(b) of the Agreement requires employees to take annual leave between the 1^st day of April and the 31^st day of October, or at any time to suit the convenience of the employer, provided that at least four weeks’ notice is given. It is unclear if this is a reasonable requirement to take leave consistent with s.93(3) of the Act. In so far as clause 6.1(b) of the Agreement is inconsistent with the NES, the NES will prevail.

1. The Applicant has submitted an undertaking in the required form dated 16 August 2022. The undertaking deals with the following topics:

·  The hourly wages paid to Adult Apprentices will be at least as generous as the hourly wages for Adult Apprentices under the Food, Beverage and Tobacco Manufacturing Award 2020 (the Award). I note that the Agreement provides other benefits which exceed the Award.

·  For the purposes of interpreting Clause 5.4 of the Agreement a “public holiday” shall have the same meaning as defined at s.115 of the Act.

1. A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives that responded did not express any view on the undertaking.

1. The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

1. The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and the United Workers’ Union (UWU), being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act I note that the Agreement covers these organisations.

1. 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. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 30 June 2025.

COMMISSIONER

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