Harice Pty Ltd T/A Harry’s Ice Cream Co

[2020] FWCA 3840

[2020] FWCA 3840

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Harice Pty Ltd T/A Harry’s Ice Cream Co
(AG2020/1113)

HARICE ENTERPRISE AGREEMENT 2020

Food, beverages and tobacco manufacturing industry
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 22 JULY 2020

Application for approval of the Harice Enterprise Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the Harice Enterprise Agreement 2020 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Harice Pty Ltd T/A Harry’s Ice Cream Co (Employer). The Agreement is a single enterprise agreement.

[2] In support of the application, the Employer filed evidence of the steps taken to explain the terms of the Agreement and its effects in accordance with s.180(5) of the Act. On 21 July 2020, a hearing was convened for the purpose of receiving further evidence and submissions in respect of the content of the explanation provided to relevant employees. Having regard to all the material before the Commission, I am satisfied that the requirements in s.180(5) have been met.

[3] 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.

[4] In light of the above matters, 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.

[5] I observe that clause 14.3 of the Agreement is likely to be inconsistent with the National Employment Standards (NES). Clause 14.3 states that termination of employment by abandonment will operate as from the date of the last attendance at work, or the last day’s absence in respect of which consent was granted, or in respect of which notification was given to the Employer, whichever is the latter. However, noting clause 6 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[6] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is 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), I note that the Agreement covers the organisation.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 29 July 2020. The nominal expiry date of the Agreement is 22 July 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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Annexure A