George Weston Foods Ltd T/A Mauri

[2025] FWCA 90

[2025] FWCA 90

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

George Weston Foods Ltd T/A Mauri

(AG2024/4937)

MAURI - (ENFIELD) ENTERPRISE AGREEMENT 2024

Food, beverages and tobacco manufacturing industry
DEPUTY PRESIDENT GRAYSON	SYDNEY, 10 JANUARY 2025

Application for approval of the Mauri - (Enfield) Enterprise Agreement 2024

Introduction

1. George Weston Foods Ltd T/A Mauri (the Employer) has made an application for approval of an enterprise agreement known as the Mauri - (Enfield) Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Transitional arrangements under the Secure Jobs, Better Pay amendment

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 27 February 2024 and the Agreement was made on 29 November 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

Model Flexibility Term

1. The Agreement does not contain a flexibility term that meets the requirements of s.203 of the Act. Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

National Employment Standards (NES) Precedence Term

1. Clause 36.8 provides for compassionate leave, however it is silent is relation to the entitlement to when an employee, their spouse, or de facto partner has a miscarriage or gives birth to a stillborn child. This may be inconsistent with s 104(1)(c) of the Act.

1. Clause 38.4.1 provides that the company and the employees may agree to substitute another day for any of the holidays prescribed in this clause through the consent of the majority of affected employees. This appears to be inconsistent with s.115(3) of the Act, which provides that the substitution of a public holiday with another day may only occur by agreement between the employer and an individual employee, rather than a majority of employees (see also Four yearly review of modern awards [2019] FWCFB 5145 at [48] – [50]).

1. Clause 40.2 of the Agreement contains a more beneficial version of the pre-26 August 2024 conversion scheme as a casual employee can access casual conversion after 6 months, as opposed to 12 months of employment, however, does not make note of new employee choice conversion provisions which will be available to eligible employees from February 2025.

1. The agreement provides for the following withholding or deduction from payments due to an employee:

(a)Notice not provided by an employee at termination, to be withheld from monies due to an employee an amount equal to the amount of notice the employee would have received had the employee worked through their notice period at cl.20.2.2;

(b)Cost of clothing not returned at termination in good order and condition, to be deducted from ‘any payments then due to the employee’ at cl.26.14; and,

(c)Paid leave in advance of its accrual at cl.39.6, to be deducted ‘from whatever remuneration is payable upon the termination of the employment’.

1. While s.324 of the Act provides that deductions from amounts payable to an employee are permitted in circumstances where the deduction ‘is authorised by the employee in accordance with an enterprise agreement’, these clauses do not appear to limit the source from which monies which may be deducted.

1. The effect of this is that these clauses may allow the Employer to withhold or deduct monies otherwise owing to an employee under the NES, and may be inconsistent with Chapter 2 Part 2.2 Division 2 of the Act.

1. Clause 38 of the Agreement appears to contain all current public holidays. However, it does not appear to provide for any other day, or part-day, declared or prescribed by or under a law of a State or Territory to be observed generally within the State or Territory, or a region of the State or Territory, as a public holiday, as per s115(1)(b) of the Act.

1. To the extent that these clauses may be inconsistent with the NES, I note that in accordance with the NES precedence term in Clause 6.2 of the Agreement, they will be read and interpreted in conjunction with the NES.

Section 190 Undertakings

1. The employer 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. The undertakings are taken to be a term of the Agreement.

Section 186, 187, 188 and 190

1. Subject to the undertakings referred to above, 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.

Section 183 Bargaining Representatives

1. The United Workers’ 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.

1. In accordance with s.201(2), I note that the Agreement covers the UWU.

Approval

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 17 January 2025. The nominal expiry date of the Agreement is 30 June 2027.

Variation

1. Section 218A of the Act allows the Commission to correct or amend obvious errors, defects or irregularities (whether in substance or form). Its evident purpose is to remove complexity associated with varying enterprise agreements in certain limited circumstances.

1. It is significant in understanding the context of s.218A that the Commission can vary an agreement on its own initiative (s.218A(2)(a)). The power to vary an agreement under s.218A is not unlike the slip rule provisions in s.602. An agreement can be varied under s.218A to the extent necessary to remove the error, defect or irregularity – and no further.

1. Relevantly, it was identified that clause 22.1 provides as follows:

The employer may deduct payment for any day the employee cannot be usefully employed due to any strike or any breakdown of machinery or any stoppage of work by any cause for which they cannot reasonably held responsible. [emphasis added]

1. This may be inconsistent with the stand-down provisions of the Act at s.524, which do not use the language of ‘deductions’ in respect of payments during periods an employee is stood down.

1. Further, it was identified that clause 32.3.1, which pertains to the payment for ordinary shifts for employees ‘actually engaged during ordinary hours on afternoon shifts, on rotating night shifts, and non-rotating shifts’, refers to shift allowances being payable according to ordinary rates of pay as prescribed by, along with sections C1 and D1, a ‘Section Si’ which does not appear to exist within the terms of the Agreement.

1. On 6 January 2025, the Employer agreed to the Commission’s proposal to vary the Agreement pursuant to s.218A of the Act to correct clause 32.3.1 by amending the reference to ‘Section Si’ to read ‘Section B1’.

1. On 7 January 2025, the Employer agreed to the Commission’s proposal to vary the Agreement pursuant to s.218A of the Act to correct clause 22.1 as follows, with the correction in underlined text:

The Company is not required to make payments to an employee for any day the employee cannot be usefully employed because of any strike or through any breakdown in machinery or any stoppage of work by any cause for which the Company cannot reasonably be held responsible.

1. I am satisfied that the errors listed in [19] to [21] above are errors, defects or irregularities within the meaning of s.218A(1) of the Act. I am content to vary the Agreement on my own initiative to rectify this error ([PR783146]). The variation will operate from the date the Agreement commences.

1. The Agreement attached to this Decision is the Agreement as varied and will operate from 17 January 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE527555  PR783143>

ANNEXURE A