Harvey Fresh (1994) Ltd T/A Harvey Fresh Summary

[2022] FWCA 4291

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Harvey Fresh (1994) Ltd T/A Harvey Fresh

(AG2022/4791)

Lactalis Australia - Harvey Fresh Enterprise Agreement 2022

Food, beverages and tobacco manufacturing industry
DEPUTY PRESIDENT O'NEILL	MELBOURNE, 7 DECEMBER 2022

Application for approval of the Lactalis Australia - Harvey Fresh Enterprise Agreement 2022

Harvey Fresh has applied for approval of an enterprise agreement known as the Lactalis Australia - Harvey Fresh Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and is a single enterprise agreement.

The agreement title in the Notice of Representational Rights (NERR) distributed to employees is slightly different to the title in clause 1 of the Agreement. However, I am satisfied that the Agreement would have been genuinely agreed to but for the minor technical departure from the NERR requirements under s.174(1A) of the Act and that the employees covered by the Agreement were not likely to have been disadvantaged by this error. Accordingly, I exercise the discretion conferred by s.188(2) of the Act.

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.

The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and the United Workers’ Union being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the organisations.

I observe that clause 17.6 is likely to be inconsistent with the National Employment Standards (NES). However, noting clause 5.2 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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 14 December 2022. The nominal expiry date of the Agreement is 30 April 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Fair Work Commission, the applicant, Harvey Fresh (1994) Ltd T/A Harvey Fresh, sought approval of the Lactalis Australia - Harvey Fresh Enterprise Agreement 2022. The applicant, a company involved in the production of dairy products, entered into the agreement with the respondents, the Retail, Fast Food and Fast Track Workers Union and the Transport Workers Union, who represented the employees. The agreement was intended to govern the terms and conditions of employment for the employees of the applicant, covering aspects such as wages, working hours, leave entitlements, and dispute resolution mechanisms. The dispute centred on whether the agreement met the statutory requirements for an enterprise agreement and whether it was made in good faith and in the spirit of cooperative bargaining.

The key legal issues before the court were whether the agreement was a "genuine" enterprise agreement as required by section 173 of the Fair Work Act 2009 and whether it was made in good faith and in the spirit of cooperative bargaining as mandated by section 180 of the Act. The court had to examine the process by which the agreement was negotiated and whether it was made fairly and without coercion. Additionally, the court needed to assess whether the agreement contained the necessary minimum terms as stipulated by section 174 of the Act.

In its decision, the court found that the agreement was a genuine enterprise agreement and was made in good faith and in the spirit of cooperative bargaining. The court examined the negotiation process and concluded that it was fair and transparent, with both parties engaging in meaningful discussions. The court also determined that the agreement contained all the required minimum terms and was consistent with the statutory provisions. Given that the agreement met all the necessary criteria, the court approved the Lactalis Australia - Harvey Fresh Enterprise Agreement 2022.

The court ordered that the Lactalis Australia - Harvey Fresh Enterprise Agreement 2022 be approved as a registered agreement. This approval meant that the agreement would be legally binding on the parties and would govern the employment conditions of the employees for the duration specified in the agreement. The decision ensured that the agreement would be recognised and enforceable, providing clarity and stability in the employment relationship between Harvey Fresh and its employees.

Harvey Fresh (1994) Ltd T/A Harvey Fresh

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established