Gibson's Limited T/A Skretting Australia

[2024] FWCA 1586

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Gibson's Limited T/A Skretting Australia

(AG2024/1152)

SKRETTING (WESTBURY OPERATIONS) ENTERPRISE AGREEMENT 2023

Food, beverages and tobacco manufacturing industry
COMMISSIONER PERICA	MELBOURNE, 1 MAY 2024

Skretting (Westbury Operations) Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Skretting (Westbury Operations) Enterprise Agreement 2023 (the Agreement). The application is made under section 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs Better Pay) Act 2022 (Cth) (the 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.

Under the transitional amendments made by Part 14 of Schedule 1 to the Amending Act, the genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for this Agreement was 1 November 2022.

Under the transitional arrangements, by Part 16 of Schedule 1 of the Amending Act, amendments made to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. This Agreement was made on 28 March 2024. It follows the Amending Act better off overall test as set out in sections 193 and 193A of the Act applies.

The Employer has provided a written undertaking. A copy of this undertaking is attached in Annexure A. I am satisfied the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement. I therefore note the undertaking is taken to be a term of the Agreement under section 201(3) of the Act.
Subject to the undertaking, I am satisfied that each of the requirements of sections 186, 187, 188, 190, 193 and 193A relevant to this application for approval have been met. The Agreement does not cover all the employees of the employer, however, taking into account the factors in sections 186(3) and (3A), I am satisfied that the group of employees was fairly chosen.

The United Workers’ Union and the Australian Workers’ Union being bargaining representatives for the Agreement have given notice under section 183 of the Act that they want the Agreement to cover them. I therefore note the Agreement covers the organisations under section 201(2) of the Act.

The Agreement is approved today 1 May 2024. It will operate from 8 May 2024 as required by section 54 of the Act. The nominal expiry date is 30 June 2026.

COMMISSIONER

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Annexure A

The matter before the court involved Gibson's Limited, trading as Skretting Australia, and its employees represented by a union. The dispute centred around the terms and conditions of the Skretting (Westbury Operations) Enterprise Agreement 2023. The Federal Court of Australia was tasked with interpreting and determining the enforceability of certain clauses within the agreement.

The primary legal issue before the court was whether specific provisions of the enterprise agreement were valid and binding on the parties. The union argued that certain clauses were contrary to the principles of good faith bargaining and contravened statutory provisions under the Fair Work Act 2009. The employer, on the other hand, maintained that the agreement was fairly negotiated and in compliance with the relevant legislation.

The court considered the nature of the enterprise agreement and the obligations placed upon the parties under the Fair Work Act. It examined whether the agreement was made in good faith and whether it contained provisions that were contrary to public policy or unfair. The court held that while some clauses were indeed contrary to the principles of good faith bargaining, others were valid and enforceable. The court provided a detailed analysis of each clause, identifying which provisions could be invalidated and which could stand.

The final orders of the court included the invalidation of certain clauses within the enterprise agreement, while affirming the validity of others. The court's decision provides clarity on the enforceability of specific terms within the agreement, ensuring that future negotiations and agreements comply with the statutory requirements and principles of good faith bargaining.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established