Derby Industries Pty Ltd T/A Talloman

[2024] FWCA 3498

[2024] FWCA 3498

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Derby Industries Pty Ltd T/A Talloman

(AG2024/3259)

DERBY INDUSTRIES PTY LTD ENTERPRISE AGREEMENT 2024 (TALLOMAN PRODUCTION)

Meat Industry
COMMISSIONER LIM	PERTH, 18 OCTOBER 2024

Application for approval of the Derby Industries Pty Ltd Enterprise Agreement 2024 (Talloman Production)

1. Derby Industries Pty Ltd T/A Talloman (the Applicant) has made an application for the approval of an enterprise agreement known as the Derby Industries Pty Ltd Enterprise Agreement 2024 (Talloman Production) (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 title of the Agreement on the Notice of Employee Representational Rights (NERR) is “Derby Industries Pty Ltd (Talloman Production) Enterprise Agreement” whilst the Agreement title in clause 1.1 is “Derby Industries Pty Ltd – Enterprise Agreement 2024 (Talloman Production)”. Pursuant to s 188(5) of the Act, I am satisfied that the Agreement would have been genuinely agreed to but for the minor technical errors made in relation to the requirements set out in s 174(1A) of the Act. I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the errors. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(5) of the Act.

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 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 clause in the Agreement appears to be inconsistent with the National Employment Standards (NES):

(a)The entitlement to compassionate leave provided by clause 21.1 of the Agreement does not appear to be triggered after the stillbirth of a child of the employee or a member of the employee’s immediate family or household as per s 105(1)(b) of the Act or after the employee or the employee’s spouse or de facto partner has a miscarriage as per s 105(1)(c) of the Act.

1. However, I am satisfied that under clause 4.2 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 Australasian Meat Industry Employees Union (AMIEU) (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 18 October 2024 and, in accordance with s 54, will operate from 25 October 2024. The nominal expiry date of the Agreement is 23 March 2025.

COMMISSIONER

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Annexure A: