De Costi Seafoods Pty. Ltd

[2021] FWCA 4799

[2021] FWCA 4799

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

De Costi Seafoods Pty. Ltd
(AG2021/6265)

TASSAL PRAWN OPERATIONS ENTERPRISE AGREEMENT 2021

Seafood processing
COMMISSIONER PLATT	ADELAIDE, 5 AUGUST 2021

Application for approval of the Tassal Prawn Operations Enterprise Agreement 2021.

[1] An application has been made for approval of an enterprise agreement known as the Tassal Prawn Operations Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by De Costi Seafoods Pty. Ltd (the Applicant). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 23 July 2021.

[3] On 28 July 2021, 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.

[4] The Applicant has submitted an undertaking in the required form dated 4 August 2021. The undertaking deals with the following topics:

•  The averaging period for ordinary hours may only be extended to a maximum of six months.

•  In respect of better off overall issues relating to:

•  Employees who enter into an arrangement for an annual salary in lieu of monetary entitlements; and

•  Employees who have worked ordinary hours on Sunday; and

•  Employees who are 12-hour continuous shift employees

the Applicant has provided systems consistent with that in Shop, Distributive and Allied Association v Beechworth Bakery Employee Co Pty Ltd T/A Beechworth Bakery. 1

•  A shift worker that is not a 12-hour shift worker will be entitled to a 20 minute paid meal break on each shift that is counted as time worked, in lieu of the unpaid meal break in clause 20.1.

•  Any agreement to reduce the minimum engagement period under clause 10.3(n) shall not be for less than 3 hours.

•  Where the workplace does not run successive shifts for its full time staff, part time and casual employees are entitled to be paid the non-successive shift rates applicable at clause 21.3(iii).

[5] 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 did not express any view on the undertaking.

[6] 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.

[7] There are three National Employment Standards (NES) issues which require comment:

•  Clauses 10.5(b)-(c) of the Agreement provide for casual conversion when a casual employee has worked a consistent pattern over a period of 12 months. This is a higher requirement than that contained in s.66B(1)(b) of the Act, which only requires a casual employee to have worked a regular pattern of hours on a consistent basis over a period of 6 months.

•  Clause 11.2(b) of the Agreement provides that if an employee does not give the required notice, the employer may withhold an amount from any monies due to the employee. This appears to allow for the employer to make deductions from employees’ entitlements under the NES.

•  Clause 24(a) of the Agreement proves that employees other than casual employees are entitled to public holidays. This is inconsistent with s.114 of the Act, which does not exclude casual employees from the entitlement to absence on public holidays.

[8] Clause 6.3(a) of the Agreement is an effective NES Precedence Clause, in that it states that employee entitlements under the Agreement apply unless a superior condition applies in accordance with the NES. As such, the above clauses will not apply to the extent that the NES provides a greater benefit.

[9] As the Agreement does not contain a flexibility term which meets the requirements of s.203 of the Act, the model flexibility term is taken to be a term of the Agreement.

[10] The Australian 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) of the Act I note that the Agreement covers this organisation.

[11] 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.

[12] 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 5 August 2024.

COMMISSIONER

 1   [2017] FWCFB 1664

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