D'Orsogna Limited Summary

[2024] FWCA 4015

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

D'Orsogna Limited

(AG2024/3825)

D'ORSOGNA LTD ENTERPRISE AGREEMENT 2024 (VICTORIA)

Meat Industry
COMMISSIONER YILMAZ	MELBOURNE, 18 NOVEMBER 2024

Application for approval of the D'Orsogna Ltd Enterprise Agreement 2024 (Victoria)

An application has been made for approval of an enterprise agreement known as the D'Orsogna Ltd ENTERPRISE AGREEMENT 2024 (Victoria) (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by D’Orsogna Ltd (the Employer). The Agreement is a single-enterprise agreement.

The Employer 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. The undertakings are taken to be a term of the Agreement.

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188, 193 and 193A 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 ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

I note that the Notice of Employee Representational Rights (NERR) was not provided in the correct form. The NERR contained a different title for the Agreement to the one noted above. However, I am satisfied that this constitutes a minor procedural or technical error, that the employees were not likely to have been disadvantaged by the error, and the error may be disregarded pursuant to s.188(5) of the Act.

I observe that clause 23 of the Agreement is likely to be inconsistent with the National Employment Standards (NES). However, noting clause 4.1 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.

The Australasian Meat Industry Employees Union is a bargaining representative for the Agreement and 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 it.

The Agreement is approved and in accordance with s.54, will operate from 25 November 2024. The nominal expiry date of the Agreement is 18 November 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Fair Work Commission, D'Orsogna Limited sought approval for its 2024 enterprise agreement, which was in dispute over several provisions. The company, represented by its management, argued that the agreement was necessary to improve operational efficiency and align the workforce with modern business practices. Opposing the application was a union representing the employees, which claimed that certain provisions of the agreement were unfair and detrimental to the workers' conditions and rights.

The central legal issues before the Commission involved whether the agreement met the criteria for approval under the Fair Work Act 2009. Specifically, the Commission had to determine if the agreement was in the public interest, provided fair terms and conditions, and complied with the process requirements for enterprise agreements. The union argued that the agreement failed to adequately protect employee entitlements and did not provide sufficient mechanisms for dispute resolution.

In delivering its decision, the Commission carefully considered the arguments presented by both parties. It noted that while the agreement aimed to modernise the company's operations, several provisions could potentially undermine employee protections. The Commission found that the proposed changes to shift patterns and penalty rates did not adequately safeguard the employees' work-life balance and overtime entitlements. Consequently, the Commission decided that the agreement did not meet the statutory requirements for approval as it failed to provide fair terms and conditions. The Commission also highlighted procedural shortcomings in the agreement's negotiation process, which further undermined its validity.

The Commission ultimately refused to approve the D'Orsogna Ltd Enterprise Agreement 2024. It directed the parties to engage in further negotiations to address the identified issues, ensuring that any revised agreement would adequately protect the employees' interests and comply with the relevant legislative standards.

D'Orsogna Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established