Diamond Valley Pork Pty Ltd T/A Diamond Valley Pork

[2019] FWCA 8638

[2019] FWCA 8638

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Diamond Valley Pork Pty Ltd T/A Diamond Valley Pork
(AG2019/4387)

DIAMOND VALLEY PORK PTY LTD AND AUSTRALASIAN MEAT INDUSTRY EMPLOYEES’ UNION (VICTORIAN BRANCH) MEAT PROCESSING ENTERPRISE AGREEMENT 2019

Meat Industry
COMMISSIONER HARPER-GREENWELL	MELBOURNE, 20 DECEMBER 2019

Application for approval of the Diamond Valley Pork Pty Ltd and Australasian Meat Industry Employees’ Union (Victorian Branch) Meat Processing Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Diamond Valley Pork Pty Ltd and Australasian Meat Industry Employees’ Union (Victorian Branch) Meat Processing Enterprise Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Diamond Valley Pork Pty Ltd T/A Diamond Valley Pork. The Agreement is a single enterprise agreement.

[2] 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. Pursuant to s.201(3), 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 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 the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[3] I note that clause 22 of the Agreement makes provision for the employer to recoup any overpayments/payments in excess of entitlements made during the life of this Agreement and has the right to deduct all outstanding debts owing to the company from any monies payable on cessation of employment. I note that clause 17.1 (g) of the Agreement states that in instances where outstanding equipment is not returned, the financial value will be deducted from the employee’s final pay. It note that clause 35 of the Agreement states that where an employee does not maintain clothing provided in accordance with company hygiene standards and be responsible for its care and safe keeping to a standard acceptable to the company, the company reserves the right to deduct monies equal to replacement value of the items. In my view, these clauses may not be permitted deductions within the meaning of s.324 of the Act, and pursuant to s.326 of the Act are likely to have no effect to the extent that they are not permitted deductions. However, notwithstanding my views on that, it is not a matter to which I am to have regard in terms of whether or not the Agreement should be approved and does not represent a barrier to the approval of the Agreement.

[4] The Australasian Meat Industry Employees 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) I note that the Agreement covers the organisation.

[5] The Agreement was approved on 20 December 2019 and, in accordance with s.54, will operate from 27 December 2019. The nominal expiry date of the Agreement is 8 June 2022.

COMMISSIONER

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Annexure A