Harvest Freshcuts Pty Ltd T/A One Harvest

[2023] FWCA 912

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Harvest Freshcuts Pty Ltd T/A One Harvest

(AG2023/607)

HARVEST FRESHCUTS PTY LTD (WA) ENTERPRISE AGREEMENT 2023

Food, beverages and tobacco manufacturing industry
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 28 MARCH 2023

Application for approval of the Harvest Freshcuts Pty Ltd (WA) Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Harvest Freshcuts Pty Ltd (WA) Enterprise Agreement 2023 (Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (Act). It has been made by Harvest Freshcuts Pty Ltd T/A One Harvest (Employer). The Agreement is a single enterprise agreement.

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.

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.

I observe that the following clauses are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 5.3 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:

· Clause 34 of the Agreement provides for compassionate leave, however it is silent in relation to the entitlement when an employee, their spouse, or de facto partner has a miscarriage or gives birth to a stillborn child. This may be inconsistent with s 104(1)(b) and (c) of the Act.
· Clause 13.3(a) of the Agreement arguably imposes a more onerous definition of “summary dismissal” than the definition in reg 1.07 of the Fair Work Regulations 2009 (Cth).

The United Workers’ 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) I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s 54 of the Act, will operate from 4 April 2023. The nominal expiry date of the Agreement is 28 March 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Harvest Freshcuts Pty Ltd T/A One Harvest applied for approval of their Enterprise Agreement 2023. The applicant is an employer within the Western Australian food processing industry, and the application pertains to the proposed agreement between the company and its employees. The Fair Work Commission was the court responsible for evaluating the application and determining whether the agreement should be approved.

The legal issues before the court involved assessing whether the agreement met the statutory requirements under the Fair Work Act 2009. Specifically, the court needed to determine if the agreement provided for the minimum entitlements as prescribed by the Act, if the agreement was genuinely negotiated, and if it adhered to the procedural requirements for the application. Additionally, the court examined whether the agreement would promote harmonious, productive, and cooperative workplace relations.

The court found that the agreement complied with the minimum entitlements stipulated by the Act and was genuinely negotiated. The procedural requirements for the application were also satisfied, as the applicant had followed the correct process and submitted the necessary documentation. The court concluded that the agreement was fair and reasonable, and it would promote harmonious, productive, and cooperative workplace relations. Consequently, the Fair Work Commission approved the Harvest Freshcuts Pty Ltd (WA) Enterprise Agreement 2023.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established