Hakubaku Australia Pty Ltd T/A Hakubaku Australia Summary

[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

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).

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.

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.

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.

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.

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.

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

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.

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.

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

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The applicant, Hakubaku Australia, sought approval of an enterprise agreement between the company and the Australian Manufacturing Workers' Union (AMWU) for the period 2024/2026. The application was heard by the Fair Work Commission. The primary issue before the Commission was whether the proposed enterprise agreement met the statutory requirements for approval under the Fair Work Act 2009. Specifically, the Commission needed to determine if the agreement contained all the mandated terms and conditions, was free from prohibited content, and complied with procedural requirements, including proper consultation and notice provisions.

The Commission examined the contents of the proposed agreement, verifying that it included all the minimum terms and conditions as stipulated by the Act. It was also necessary to ensure that the agreement did not include any provisions that were expressly prohibited by the legislation. Furthermore, the Commission assessed whether the requisite consultation processes had been followed, including whether the employer had provided adequate notice to the employees and the union. The applicant provided evidence that all procedural steps had been complied with, including the distribution of the agreement to all relevant employees and the holding of meetings to discuss the terms.

After reviewing the evidence and the proposed agreement, the Commission concluded that the agreement satisfied all legal requirements for approval. The agreement was comprehensive, contained all necessary terms, and was free from prohibited content. Additionally, the procedural steps for consultation and notice were properly followed. Therefore, the Commission approved the Hakubaku and AMWU Union Enterprise Agreement 2024/2026. The final orders of the Commission were that the enterprise agreement be approved as presented, effective from the date of the decision.

Hakubaku Australia Pty Ltd T/A Hakubaku Australia

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established