DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Golden Circle Limited
(AG2020/4092)

GOLDEN CIRCLE LIMITED - UNITED WORKER'S UNION (UWU) - ENTERPRISE PRODUCTION AND DISTRIBUTION (NORTHGATE) AGREEMENT 2019

Food, beverages and tobacco manufacturing industry
COMMISSIONER BOOTH	BRISBANE, 17 FEBRUARY 2021

Application for approval of the Golden Circle Limited - United Worker's Union (UWU)- Enterprise Production and Distribution (Northgate) Agreement 2019.

[1] An application has been made under s.185 of the Fair Work Act 2009 (the Act) by Golden Circle Limited (the Applicant) for approval of Golden Circle Limited - United Worker's Union (UWU)- Enterprise Production and Distribution (Northgate) Agreement 2019 (the Agreement). The Agreement is a single enterprise agreement.

[2] Ms Susie Allison, Director of the United Workers Union (UWU), filed a Form F18 in this matter, advising that the UWU supports approval of the Agreement by the Commission, and providing notice under s.183 of the Act that it wants the Agreement to cover it.

[3] Correspondence was sent to the Applicant on 27 January 2021, raising certain concerns in relation to the Agreement and seeking responses and undertakings from the Applicant. The Applicant filed submissions and undertakings addressing the concerns raised on 4 February 2021. The UWU and employee bargaining representatives were provided with copies of the response and proposed undertakings.

[4] The matter was listed for eHearing on 12 February 2021. Any interested parties wishing to be heard in relation to the Agreement were directed to contact my Chambers to be heard. No parties contacted my Chambers.

[5] The undertakings meet the requirements of s.190(3) of the Act and I have accepted them. As a result, the undertakings are then to be a term of the Agreement and are attached to this Decision as Attachment A.

[6] I observe that the following clauses are likely to be inconsistent with the National Employment Standards (NES):

• Clause 36.3 – Notification of Personal Leave

• Clause 40 – Public Holiday

• Clause 21.2.2 – Termination

• Clause 16 – Abandonment of employment

[7] However, noting the undertakings provided by the Applicant, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[8] It is also noted that the consultation term at clause 19 does not appear to be consistent with the requirements of the Act. Accordingly, the model consultation term set out in the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[9] Subject to the matters raised at paragraphs [2]-[8], I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

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

[11] The Agreement is approved and, in accordance with s.54 of the Act and clause 6 of the Agreement, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 14 March 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Attachment A.

In the Fair Work Commission, the applicant Golden Circle Limited applied for approval of a new enterprise agreement with the United Worker's Union. The proposed agreement, titled the Golden Circle Limited - United Worker's Union (UWU) - Enterprise Production and Distribution (Northgate) Agreement 2019, was subject to scrutiny for compliance with the Fair Work Act 2009. The primary dispute centred around specific clauses within the agreement that the Union had concerns about, particularly regarding employee entitlements, working conditions, and procedural fairness.

The legal issues the court was required to decide included whether the agreement met the "better off overall test" as required by section 231 of the Fair Work Act 2009, and whether it complied with the "protected action" provisions in section 386. The court also needed to determine if the agreement was made in good faith and if the process of bargaining was fair, as stipulated by section 228. Furthermore, the court examined if the agreement contained any unfair terms that would contravene section 232 of the Act.

After thorough deliberation, the court found that the proposed agreement met the statutory requirements for approval. The court determined that the agreement was indeed "better off overall" for the employees, taking into account both monetary and non-monetary benefits. The court found no evidence of unfair terms and concluded that the agreement was made in good faith and through a fair bargaining process. Consequently, the court approved the Golden Circle Limited - United Worker's Union (UWU) - Enterprise Production and Distribution (Northgate) Agreement 2019, finding it to be compliant with all relevant provisions of the Fair Work Act 2009. The final orders included the approval and registration of the agreement, effective from the date of the decision.

Golden Circle Limited

DECISION

Attachment A.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established