Hakubaku Australia Pty Ltd T/A Hakubaku Australia

[2024] FWCA 4572

[2024] FWCA 4572

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Hakubaku Australia Pty Ltd T/A Hakubaku Australia

(AG2024/4614)

HAKUBAKU AND AMWU UNION ENTERPRISE AGREEMENT 2024/2026

Food, beverages and tobacco manufacturing industry
COMMISSIONER ALLISON	MELBOURNE, 20 DECEMBER 2024

Application for approval of the Hakubaku and AMWU Union Enterprise Agreement 2024/2026

1. Hakubaku Australia Pty Ltd (the Employer) has made an application, pursuant to s.185 of the Fair Work Act 2009 (the Act), for approval of a single enterprise agreement known as the Hakubaku and AMWU Union Enterprise Agreement 2024/2026 (the Agreement).

1. 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) I note that the Agreement covers the organisation.

1. The application was not lodged within 14 days after the agreement was made. Pursuant to s.185(3)(b), in all the circumstances I consider it fair to extend the time for making the application to the date it was made.

1. Clause 6 of the Agreement contained a drafting error, as it specified an incorrect expiry date. The Employer provided an updated copy of the Agreement which corrected the nominal expiry date. I am satisfied that the previous clause constituted an obvious error, defect or irregularity, and I will amend the Agreement accordingly pursuant to s.218A of the Act.

1. The following provisions may be inconsistent with the National Employment Standards (NES):

• Clause 33.2 relating to notice requirements for personal and carer’s leave, may be a more stringent notice requirement than as provided in s.107(2)(a) of the Act.

1. The Employer provided an NES precedence undertaking to resolve this concern. Noting the undertaking, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. Rates of pay for casual employees under the Agreement were below Award rates. The Employer provided an undertaking to resolve this concern.

1. A copy of the undertakings is attached in Annexure A. 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. The undertakings are taken to be a term of the agreement.

1. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 27 December 2024. The nominal expiry date of the Agreement is 30 June 2026.

COMMISSIONER

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Annexure A