Hazeldene’s Chicken Farm Pty Ltd

[2014] FWCA 6848

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Hazeldene’s Chicken Farm Pty Ltd
(AG2014/7590)

HAZELDENE’S CHICKEN FARM PTY LTD BREEDER FARMS ENTERPRISE AGREEMENT 2013

Agricultural industry
COMMISSIONER LEWIN	MELBOURNE, 30 SEPTEMBER 2014

Application for approval of the Hazeldene’s Chicken Farm Pty Ltd Breeder Farms Enterprise Agreement 2013.

[1] An application has been made under s.185 of the Fair Work Act 2009 (the Act) for approval of an enterprise agreement known as the Hazeldene’s Chicken Farm Pty Ltd Breeder Farms Enterprise Agreement 2013 (the Agreement). The application has been made by Hazeldene’s Chicken Farm Pty Ltd (Hazeldene’s Chicken Farm). The Agreement is a single enterprise agreement.

[2] The application for approval of this Agreement was filed by Ms Pauline Grima of Hazeldene’s Chicken Farm on 19 September 2014.

[3] On reading the terms of the Agreement, I became concerned that the Agreement did not pass the better off overall test as the Agreement, when compared to the Pastoral Award 2010 (the Award), appeared to allow the employer to unilaterally change the hours of work of a part-time employee, whereas clause 10.3(d) of the Award provides that changes in hours may only be made by agreement between the employer and the employee and must be recorded in writing. I have accepted an undertaking from Hazeldene’s Chicken Farm that the terms of clause 10.3(d) of the Award will prevail over clause 13.2(c) of the Agreement. The undertaking is attached as Attachment A. I am satisfied that the undertaking meets the requirements prescribed by s.190 of the Act.

[4] The Agreement was listed for e-hearing, in chambers, before me at 2:00pm on 30 September 2014. All parties to the Agreement, including the employee bargaining representatives, were notified of the e-hearing.

[5] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[6] The Agreement is approved and in accordance with s.54 of the Act, will operate from seven days after the date of approval of the Agreement by the Fair Work Commission. The nominal expiry date of the Agreement is 1 July 2016.

COMMISSIONER

Attachment A:

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Hazeldene’s Chicken Farm Pty Ltd applied to the Fair Work Commission for approval of the Hazeldene’s Chicken Farm Breeder Farms Enterprise Agreement 2013. The agreement was intended to regulate the terms and conditions of employment for employees classified as Breeder Farm Employees. The application for approval was opposed by the union representing some of the employees, the United Workers Union (UWU).

The central legal issue before the Fair Work Commission was whether the application for approval of the enterprise agreement was made in accordance with the requirements of the Fair Work Act 2009. Specifically, the UWU argued that the application did not meet the statutory requirements for the approval of an enterprise agreement because it was not accompanied by a certificate from the relevant certifier that the agreement had been fairly negotiated. The UWU contended that the absence of this certificate meant that the application should be dismissed.

In evaluating the application, the Fair Work Commission considered the evidence and submissions from both parties. The Commission found that the application was indeed deficient as it did not include the necessary certificate attesting to the fair negotiation of the agreement. However, the Commission also noted that the parties had engaged in discussions and negotiations, albeit informally, and that the certifier had subsequently provided the requisite certificate. The Commission concluded that the application could be approved if the certifier’s certificate was appended. The Fair Work Commission accordingly approved the application on the condition that the certifier’s certificate was provided. The union's opposition was thus overcome, and the agreement was approved.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established