Emerald Grain Pty Ltd

[2021] FWCA 1355

[2021] FWCA 1355

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Emerald Grain Pty Ltd
(AG2020/3796)

EMERALD GRAIN MPT EA 2020

Grain handling industry
DEPUTY PRESIDENT YOUNG	MELBOURNE, 12 MARCH 2021

Application for approval of the Emerald Grain MPT EA 2020.

[1] Emerald Grain Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Emerald Grain MPT EA 2020 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] A number of concerns were raised by the Commission in relation to the Agreement. A conference was held in relation to those matters on 3 March 2021.

[3] The Notice of Representational Rights (NERR) issued to employees stated that Emerald Grain is bargaining in relation to an Enterprise Agreement entitled Emerald Grain MPT EA 2018 when in fact, the title of the Enterprise Agreement is Emerald Grain MPT EA 2020. The Employer provided submissions regarding this. I am satisfied having regard to those submissions and the Full Bench decision in Huntsman Chemical Company Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Others 1 (Huntsman)that this constitutes a minor technical or procedural error for the purposes s 188(2)(a) of Act. Further, I am satisfied that employees were not likely to have been disadvantaged by this error.

[4] Accordingly, notwithstanding the matters identified in paragraph 3 above, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2).

[5] The Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

[6] Subject to the undertakings referred to above, and on the basis of the material contained in the application, and the accompanying statutory declaration and the additional information provided by the Employer and having heard from the parties, 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.

[7] I observe that clauses 7.1.8(c), 7.2.2, 7.8, 7.2.3(a) and (c), 7.3, 7.3.4, 7.4.1, 7.3.1, 7.4.2, 7.4.3, 6.7.2 and Appendix 3.1.2 of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 2.4.1 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.

[8] The United Workers’ Union being a bargaining representative for the Agreement, has given notice under s 183 of the Act that it seeks to be covered by the Agreement. In accordance with s 201(2) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

[9] The Agreement was approved on 12 March 2021 and, in accordance with s 54, will operate from 19 March 2021. The nominal expiry date of the Agreement is 30 November 2023.

DEPUTY PRESIDENT

Annexure A

 1   [2019] FWCFB 318

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