Golden Cockerel Pty Ltd T/A Golden Cockerel

[2023] FWCA 1396

[2023] FWCA 1396

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Golden Cockerel Pty Ltd T/A Golden Cockerel

(AG2023/1157)

GOLDEN COCKEREL PTY LTD MAINTENANCE EMPLOYEES ENTERPRISE AGREEMENT - 2023

Manufacturing and associated industries
DEPUTY PRESIDENT DOBSON	BRISBANE, 15 MAY 2023

Application for approval of the Golden Cockerel Pty Ltd Maintenance Employees Enterprise Agreement 2023

1. An application has been made for approval of an enterprise agreement known as the Golden Cockerel Pty Ltd Maintenance Employees Enterprise Agreement 2023 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Golden Cockerel (the Applicant). The Agreement is a single enterprise agreement.

1. The Notice of Employee Representational Rights (NERR) distributed to employees appears to have a slightly different name of the Agreement on it. However, I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural departure from the prescribed form requirements of the NERR under s.174(1A) of the Act and that the employees covered by the Agreement were not likely to have been disadvantaged by this. Accordingly, I exercise the discretion conferred by s.188(2) of the Act.

1. The Applicant has provided written undertakings. 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. The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

1. Pursuant to s.190(3) of the Act, I accept the undertakings.

1. Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

1. I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

·  Clause 4.6.2 – Withholding of NES entitlements on termination

·  Clause 7.4 – Compassionate leave

·  Clause 7.7.1 – Public Holidays – entitlement to be absent

·  Clause 7.72 – Public Holidays – substitution (must be agreed by an individual employee and the employer)

However, noting the undertakings given 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.

1. The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (ETU) and the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU) have lodged a Form F18 statutory declaration giving notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act, I note the Agreement covers the ETU and the AMWU.

1. The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 30 January 2026.

DEPUTY PRESIDENT

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