Decosti Seafoods Pty Ltd

[2025] FWCA 678

[2025] FWCA 678

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Decosti Seafoods Pty Ltd

(AG2024/5303)

TASSAL PRAWN OPERATIONS ENTERPRISE AGREEMENT 2024

Aquaculture
COMMISSIONER HUNT	BRISBANE, 21 FEBRUARY 2025

Application for approval of the Tassal Prawn Operations Enterprise Agreement 2024

1. Decosti Seafoods Pty Ltd (the Employer) has applied for approval of an enterprise agreement known as the Tassal Prawn Operations Enterprise Agreement 2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, commencing operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 7 August 2024 and the Agreement was made on 18 December 2024. Accordingly, the genuine agreement requirements and the better off overall test requirements are those applying on and from 6 June 2023.

1. The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with the Employer, and as a result, the Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. Pursuant to s.190(4) of the Act, I sought the views of the Australian Workers’ Union (AWU) and employee bargaining representatives regarding the undertakings, allowing a period of two business days from receipt of the undertakings to provide any views. The AWU indicated that it did not object to the Employer’s undertakings.

1. 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. Pursuant to s.190 of the Act, I accept the undertakings. In accordance with s.201(3) of the Act, I note that the undertakings are taken to be a term of the Agreement.

1. I indicated to the Employer my view that the Agreement did not contain a flexibility term as required by s.202 of the Act, and that in the event of approval, the model flexibility term would be inserted into the Agreement. Pursuant to s.202(4) of the Act, the model flexibility term prescribed by Schedule 2.2 to the Fair Work Regulations 2009 is attached to the Agreement and taken to be a term of it.

1. I have taken into consideration the material filed in the Commission. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 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 s.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

1. The AWU, being a bargaining representative for the Agreement, has given notice under s.183 it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers the AWU.

1. In its Form F17B declaration lodged with the approval application, the Employer noted that the first aid allowance in Schedule C of the Agreement, appearing at page 47, contained errors. The Employer proposed undertakings to correct the first aid allowance amounts to those that the parties intended to include in the Agreement.

1. Section 190(1)(b) of the Act states that the Commission may only accept an undertaking to address a concern that an agreement does not meet the requirements of ss.186 and 187 of the Act. As the title of an agreement is not a matter addressed in ss.186 or 187, I indicated to the Employer my view that the amendments proposed by the Employer could be made pursuant to s.218A of the Act, which allows the Commission to vary an agreement to correct an obvious error, defect or irregularity.

1. The Employer indicated that it did not object to the Commission exercising its powers under s.218A to vary the agreement to correct the errors in relation to the first aid allowance. The first aid allowances contained in the version of the Agreement lodged for approval appear to be reflective of those provided by the Seafood Processing Award 2020 and are lower than the allowance currently paid by the Employer. I am therefore satisfied that the first aid allowances contained in Schedule C of the Agreement at page 47 are obvious errors within the meaning of s.218A of the Act.

1. Accordingly, I exercise my discretion to vary the Agreement to correct the obvious errors identified by the Employer. I do so on the Commission’s initiative pursuant to s.218A(2)(a) of the Act. The variation sought will operate from the operative date of the Agreement, being 28 February 2025. In anticipation of the Commission exercising its power under s.218A, the Employer has provided an updated version of the Agreement containing the correct first aid allowances. I confirm that the version of the Agreement published with this decision contains the correct first aid allowances.

1. 
   The Agreement is approved and, in accordance with s.54 of the Act, will operate from 28 February 2025. The nominal expiry date of the Agreement is 21 February 2028.

COMMISSIONER

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Annexure A – Undertakings