Gruma Oceania Pty Ltd T/A Mission Foods

[2021] FWCA 4006

[2021] FWCA 4006

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Gruma Oceania Pty Ltd T/A Mission Foods
(AG2021/5833)

THE GRUMA OCEANIA ENTERPRISE AGREEMENT 2021

Food, beverages and tobacco manufacturing industry
COMMISSIONER CIRKOVIC	MELBOURNE, 8 JULY 2021

Application for approval of the Gruma Oceania Enterprise Agreement 2021.

[1] Gruma Oceania Pty Ltd T/A Mission Foods (the Applicant) has made an application for approval of an enterprise agreement known as the Gruma Oceania Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 2 July 2021.

[3] On 5 July 2021, my Chambers sent correspondence to the parties seeking to address concerns with certain aspects of the Agreement and invited the parties to address these matters. The concerns were as follows:

•  Clause 31.2 of the Agreement relating to termination was inconsistent with s. 324 of the Act and may be of no effect per s. 326 of the Act;

•  The Agreement contained clauses which raised concerns about the entitlements contained in the National Employment Standards, specifically these where:

i. Casual conversion: Clause 9.5(e);

ii. Annual leave: Clause 18.1;

iii. Personal leave: Clause 17 and 19.3;

iv. Abandonment of employment: Clause 17.3;

v. Redundancy: Clause 33.4;

vi. Jury Service: contained in Clause 38

•  The Agreement raised several issues regarding the better of overall test, including:

i. Whether employees categorised as ‘Flexible part time employees’ are better off overall; and

ii. The adult apprentice rates contained in the Agreement.

[4] The Applicant gave detailed submissions on the matters identified above and has submitted an undertaking in the required form dated 6 July 2021. The undertaking deals with the following topics:

•  The Applicant has inserted a National Employment Standards (NES) precedence clause;

•  The Applicant addressed rates paid to adult apprentices; and

•  The Applicant corrected a typographical error relating to clauses 13.2 and 13.3 of the Agreement.

[5] A copy of the undertaking has been provided to the bargaining representatives and they have provided their views in accordance with s.190(4) of the Act. The bargaining representatives that responded supported the undertaking.

[6] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[7] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers this organisation.

[8] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 5 December 2024.

COMMISSIONER

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