Greencorp Pty Ltd

[2024] FWCA 3859

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Greencorp Pty Ltd

(AG2024/3899)

GREENCORP PTY LTD AND UNITED WORKERS’ UNION ENTERPRISE AGREEMENT 2024-2026

Manufacturing and associated industries
COMMISSIONER SLOAN	SYDNEY, 4 NOVEMBER 2024

Application for approval of the Greencorp Pty Ltd and United Workers’ Union Enterprise Agreement 2024-2026

Greencorp Pty Limited (“the Employer”) has made an application for approval of an enterprise agreement known as the Greencorp Pty Ltd and United Workers’ Union Enterprise Agreement 2024-2026 (“Agreement”), pursuant to s 185 of the Fair Work Act 2009 (“Act”). The Agreement is a single enterprise agreement.
Following my review of the Agreement, I identified a number of matters on which I required clarification. I arranged for an email to be sent to the Employer on 30 October 2024 requesting further information on those matters. The Commission received a response on 1 November 2024. Other than to the extent set out below, it is not necessary for me to traverse those issues.
The content and form of notice of employee representational rights (“NERR”) provided by the Employer to employees was not consistent with s 174(1A) of the Act, having regard to Reg 2.05 and Sch 2.1 of the Fair Work Regulations 2009. On balance, I consider this to be a minor procedural or technical error of the nature contemplated by s 188(5) of the Act. I am satisfied that the employees are not likely to have been disadvantaged by the error. However, I encourage the Employer in future to ensure that any NERR it issues is compliant with the Act and Regulations.
Clause 25.2.4 of the Agreement provides that an employee will be granted Paid Personal/Carer’s Leave “subject to the Employee notifying the Employer of their absence from work as soon as practicable and generally prior to their designated start time” (my emphasis). This is arguably inconsistent with s 107(2)(a) of the Act, which provides that notice “must be given to the employer as soon as practicable (which may be a time after the leave has started)”. That is, cl 25.2.4 may be construed as imposing a “general” precondition to the provision of paid personal leave that the notification is provided prior to an employee’s designated start time.
However, cl 8.1 of the Agreement provides that the National Employment Standards (“NES”) will prevail over any term of the Agreement which is less favourable to the employees. Applied correctly, cl 8.1 would prevent cl 25.2.4 being construed in a manner contrary to the NES. In raising the issue, it is my intention to ensure that this is the case.
The United Workers Union (“UWU”) was a bargaining representative for the Agreement. It supports the Commission approving the Agreement.
On the basis of the material available to me, including the application and the accompanying declaration, I am satisfied that each of the requirements of ss 186, 187, 188 and 190 of the Act as are relevant to the application for approval have been met.
The UWU has given notice under s 183 of the Act that it wants the Agreement to cover it. As required by s 201(2) of the Act, I note that the Agreement covers the UWU.
The Agreement is approved. In accordance with s 54 of the Act, the Agreement will operate from 7 November 2024. The nominal expiry date of the Agreement is 5 April 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Greencorp Pty Ltd, an employer, and the United Workers’ Union, a trade union, applied for the approval of their Enterprise Agreement 2024-2026 before the Fair Work Commission. The application was brought before the Full Bench of the Commission, which had to determine whether the agreement complied with the requirements of the Fair Work Act 2009. The dispute arose because Greencorp Pty Ltd contested certain provisions of the agreement, arguing they did not meet the statutory criteria for approval.

The central legal issue before the Commission was whether the Enterprise Agreement 2024-2026 contained terms that were outside the scope of registrable provisions under the Fair Work Act 2009. Specifically, Greencorp Pty Ltd argued that certain clauses related to employee entitlements and working conditions exceeded the permissible limits set by the legislation. The Commission had to examine each contested term to ascertain its compliance with the Act and its regulations.

The Full Bench of the Fair Work Commission considered the arguments from both parties and examined the text of the Enterprise Agreement 2024-2026. The Commission found that while some provisions were indeed outside the scope of registrable terms, the majority of the agreement complied with the statutory requirements. Consequently, the Commission approved the agreement with certain modifications to align it with the Fair Work Act 2009. The modifications involved removing or amending the non-compliant terms while preserving the overall intent of the agreement.

The final orders of the Commission were that the Enterprise Agreement 2024-2026 be approved with specified modifications to the contested provisions. The modifications ensured that the agreement met all legal requirements for registration under the Fair Work Act 2009. The approval of the agreement was subject to the condition that the modified terms be communicated to all relevant parties and implemented accordingly.

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