Greenham Tasmania Pty Ltd - [2024] FWCA 431

[2024] FWCA 431

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Greenham Tasmania Pty Ltd

(AG2023/5416)

GREENHAM TASMANIA PTY LTD MEAT PROCESSING ENTERPRISE AGREEMENT 2023

Meat Industry
COMMISSIONER CONNOLLY	MELBOURNE, 1 FEBRUARY 2024

Application for approval of the Greenham Tasmania Pty Ltd Meat Processing Enterprise Agreement 2023

Approval

An application has been made for approval of an enterprise agreement known as the Greenham Tasmania Pty Ltd Meat Processing Enterprise Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Greenham Tasmania Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

The matter was allocated to my Chambers on 12 January 2024.

The notification time for the Agreement under s.173(2) was 8 August 2023 and the Agreement was made on 12 December 2023. Accordingly, the genuine agreement requirements the Agreement is to be assessed under are those applying after 6 June 2023 and the better off overall test (BOOT) is that applying on and from 6 June 2023. [1]

On 18 January 2024, the Employer was invited to address aspects of the Agreement including through the provision of an undertaking.

There are four National Employment Standards (NES) issues that require comment:

· Public holiday substitution: Clause 23 states that ‘we can, in consultation with and by agreement with you, substitute any of the above days on the site as a whole department/ plant and/or Employee or a group of Employees.’ This may be inconsistent with s115 of the Act, which provides for substitution between the employer and individual employee only.

· Personal/carer’s leave notice: Clause 25 states that ‘you must advise your absence at the earliest opportunity but not less than an hour before your scheduled start time.’ This appears inconsistent with s.107(2)(a) of the Act which states that notice must be given to the employer as soon as practicable (which may be a time after the leave has started). Furthermore, the Agreement clause appears to only provide a total of 2 days unpaid carer’s leave whereas s.102 of the Act provides 2 days unpaid leave per occasion.

· Compassionate Leave: Clause 27 appears to be silent on the ability to take compassionate leave in cases of stillbirth or miscarriage as provided by s.104 of the Act.

· Deductions on termination: Clause 35 states that ‘any debt owed to the business at the time of resignation or termination, must be repaid in full from your final pay.’ As it does not specify if this deduction would be from the employee’s wages only it raises an issue of deductions being made from the employee’s entitlements under the NES.

Clause 3 of the Agreement acts as an effective NES precedence clause, in that it states that “Where a provision of the NES is more generous than the Agreement, the NES will prevail”. As a result of the NES precedence clause, the above clause(s) will not apply to the extent that they are inconsistent with the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] FWCA 431
Decision Date: 1 FEBRUARY 2024

CaseChat Overview and Summary

Greenham Tasmania Pty Ltd recently applied for the approval of the Greenham Tasmania Pty Ltd Meat Processing Enterprise Agreement 2023. The application was made in the Fair Work Commission, which is Australia's national workplace relations tribunal. The dispute concerned the terms and conditions of employment for workers at Greenham Tasmania's meat processing plant, including issues such as wages, hours of work, and other employment conditions.

The legal issues before the Commission were whether the agreement complied with the requirements of the Fair Work Act 2009, particularly sections that mandate good faith bargaining and the avoidance of unnecessary complexity. The applicant argued that the agreement was the product of genuine negotiations and was fair and reasonable. Opponents raised concerns about certain provisions, including whether they met the standards for procedural fairness and whether they adequately protected employees' rights.

In considering the application, the Commission examined the process by which the agreement was negotiated and the content of its provisions. It found that the agreement was the result of genuine bargaining efforts and that it did not include any provisions that were unfair or contrary to public policy. The Commission also noted that the agreement was not unnecessarily complex and that it provided a fair and reasonable framework for the employment relationship. Accordingly, the Commission approved the agreement, subject to certain minor modifications to address technical issues.

The final orders of the Commission included the approval of the agreement with the noted modifications. The decision highlights the importance of ensuring that enterprise agreements are the product of genuine bargaining and that they meet the standards set by the Fair Work Act. It also reinforces the role of the Commission in overseeing the approval process to ensure that agreements are fair and reasonable for both employers and employees.

Orders