George Weston Foods Ltd T/A Mauri

[2024] FWCA 61

[2024] FWCA 61

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

George Weston Foods Ltd T/A Mauri

(AG2023/5043)

MAURI (QLD) ENTERPRISE AGREEMENT 2023

Food, beverages and tobacco manufacturing industry
COMMISSIONER LIM	PERTH, 8 JANUARY 2024

Application for approval of the MAURI (Qld) Enterprise Agreement 2023

1. George Weston Foods Ltd has made an application for the approval of an enterprise agreement known as the MAURI (Qld) Enterprise Agreement 2023 (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 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 Fair Work Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s 173(2) was 27 September 2023 and the Agreement was made on 24 November 2023. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

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 representative’s 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. Clause 4.10 states an employee who is absent from work without the company’s consent for a continuous period of 2 working days or more, will before the commencement of the first day or shift of absence, inform the Company of the absence stating reasons and estimated duration. In addition, clause 7.6 requires employees to provide notice outlining the reason for not being at work. This appears to be inconsistent with notice requirements under s 107 of the Act which states notice must be given as soon as practicable (which may be a time after the leave has started) and advise the employer of the period or expected period of the leave.

1. Additionally, Clause 4.11 of the agreement appears to state that if an employee is absent for a period of 3 days without the consent of the Company and without notification to the Company shall be evidence that the employee has abandoned their employment. The Employee will be deemed to have abandoned their employment if they have not established, within 14 days, that they were absent for a reasonable cause. Clause 4.11(c) states the termination shall operate from the last attendance at work or the last day’s absence in respect of which was granted, or the date of the last absence in respect of which notification was given to the Company, whichever is later. It is unclear whether employees receive notice of termination and as such this appears to be inconsistent with the NES at section 117 of the Act.

1. However, I am satisfied that under clause 1.5 of the Agreement, the more beneficial entitlements of the National Employment Standards (NES) will prevail where there is an inconsistency between the Agreement and the NES.

1. The title of the agreement in the NERR differed from the title contained in clause 1 of the Agreement. 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 United Workers Union (the 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), 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 8 January 2024 and, in accordance with s 54, will operate from 15 January 2024.  The nominal expiry date of the Agreement is 1 October 2026.

COMMISSIONER

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ANNEXURE A