Hardwicks Meatworks Pty Ltd T/A Hardwicks Meatworks Pty Ltd

[2022] FWCA 3563

[2022] FWCA 3563

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Hardwicks Meatworks Pty Ltd T/A Hardwicks Meatworks Pty Ltd

(AG2022/3687)

Hardwicks Meatworks Pty Ltd and the Australasian Meat Industry Employees Union Victorian Meat Processing Agreement 2022

Meat Industry
COMMISSIONER MIRABELLA	MELBOURNE, 18 OCTOBER 2022

Application for approval of the Hardwicks Meatworks Pty Ltd and the Australasian Meat Industry Employees Union Victorian Meat Processing Agreement 2022.

1. Hardwicks Meatworks Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Hardwicks Meatworks Pty Ltd and the Australasian Meat Industry Employees Union Victorian Meat Processing Agreement 2022 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

1. The Employer has provided written undertakings. 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, and on the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of sections 186, 187, 188 and 190, as are relevant to this application for approval, have been met.

1. The Employer did not take all reasonable steps to notify the relevant employees of the time of the vote by the start of the access period for the Agreement. Some employees received access to the ballot sometime after the time for voting had closed. Pursuant to s.188(2), I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural error made in relation to the requirement in s.180(3). I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed to within the meaning of s.188(2) of the Act.

1. Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 (Regulations) is taken to be a term of the Agreement.

1. Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Regulations is taken to be a term of the Agreement.

1. I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

·   Clause 6.2(ii): Personal/carer’s leave

·   Clause 6.2.3: Personal/carer’s leave

1. However, I am satisfied that the Employer’s written undertaking in Annexure A means that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Australasian Meat Industry Employees Union, 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) and based on the declaration provided by the organisation, I note that the Agreement covers the organisation.

1. The Agreement was approved on 18 October 2022 and, in accordance with s.54, will operate from 25 October 2022. The nominal expiry date of the Agreement is 18 October 2024.

COMMISSIONER

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Annexure A