Everest Ice Cream Australia Pty Ltd

[2022] FWCA 1459

[2022] FWCA 1459

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Everest Ice Cream Australia Pty Ltd

(AG2022/1175)

Everest Ice Cream Australia Pty Ltd and the United Workers Union Enterprise Agreement 2021

Food, beverages and tobacco manufacturing industry
COMMISSIONER CIRKOVIC	MELBOURNE, 29 APRIL 2022

Application for approval of the Everest Ice Cream Australia Pty Ltd and the United Workers Union Enterprise Agreement 2021

1. Everest Ice Cream Australia Pty Ltd (the Applicant) has made an application for approval of an enterprise agreement known as the Everest Ice Cream Australia Pty Ltd and the United Workers Union Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 26 April 2022.

1. On 27 April 2022, my Chambers sent correspondence to the parties seeking to address concerns with certain aspects of the Agreement and invited the parties to address these matters. The concerns were as follows:

·  Chambers sought and received a revised agreement signature page that contained the correct authority of the employee bargaining representative.

·  The agreement title in the NERR (Everest Australia Pty Ltd & United Workers Union 2021) appeared to be different than the title in clause 1 of the agreement (Everest Ice Cream Australia Pty Ltd and the United Workers Union Enterprise Agreement 2021). Pursuant to section 188(2) of the Act, I correct this NERR inconsistency noting that employees were not disadvantaged by the error.

·  The definition of shift worker contained at clause 23.3.3 of the Agreement was inconsistent with the definition contained in the relevant Awards.

·  The parties were notified that clause 15.5.1 relating to dismissal for serious misconduct may be inconsistent with Part 3-2 of the Act.

·  The parties were notified that the deduction contained at clause 40.1.1 of the Agreement, relating to deduction of monies upon termination, may be enforceable and contrary to s.324 of the Act.

·  Clause 26.5 relating to compassionate leave, clause 31.3.1(a) relating to public holiday substitution and clause 14.3 relating to redundancy may be inconsistent with the National Employment Standards (NES) however the NES precedence term contained at clause 7.1 of the Agreement is deemed sufficient to resolve these NES concerns.

·  Chambers raised better off overall concerns regarding apprentices, continuous shift workers and overtime rates paid to shift workers.

1. The Applicant has submitted an undertaking in the required form dated 29 April 2022. The undertaking deals with the following topics:

·  The Applicant provided a shift worker for the purposes of the National Employment Standards (NES) that was consistent with the Award.

·  The Applicant provided that any deductions from an amount payable to an employee will be made in accordance with section 324.

·  The Applicant has undertaken that no apprentices will be engaged under the Agreement.

·  The Applicant provided that a continuous shiftworker will not be required to work more than one shift in each 24-hour period, except at the regular changeover of shifts.

·  The Applicant provided a system for the payment of overtime rates for shift workers.

1. A copy of the undertaking has been provided to the bargaining representative and I have sought its views in accordance with s.190(4) of the Act. The bargaining representative supported the undertaking.

1. 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.

1. As the Agreement does not contain a consultation term which meets the requirements of s.205 of the Act, the model consultation term is taken to be a term of the Agreement.

1. 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.

1. The United Workers’ Union (UWU), 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.

1. 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. 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 30 June 2023

COMMISSIONER

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