Hive & Wellness Australia Pty Ltd

[2020] FWCA 850

[2020] FWCA 850

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Hive & Wellness Australia Pty Ltd
(AG2020/8)

HIVE & WELLNESS ENTERPRISE AGREEMENT 2021

Food, beverages and tobacco manufacturing industry
DEPUTY PRESIDENT LAKE	BRISBANE, 19 FEBRUARY 2020

Application for approval of the Hive & Wellness Enterprise Agreement 2021- approval under s 190 – undertakings – model consultation term – inconsistency with NES

[1] An application has been made for approval of an enterprise agreement to be known as the Hive & Wellness Enterprise Agreement 2021 (Agreement). The application was made under s 185 of the Fair Work Act 2009 (Act). It has been made by Hive & Wellness Australia Pty Ltd (Applicant).

[2] The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. In accordance with s 190, 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.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss 186, 187, 188, as are relevant to this application for approval, have been met.

[4] The United Workers’ Union (UWU) was listed under the Form 16 as being involved in the agreement making process, however, they did not lodge a Form 18 in support of the agreement. I directed the UWU to respond on 12 February 2020, however no response was reached. My Associate contacted Mr Tim Kennedy, the listed contact person for the UWU, on 17 February 2020 to seek clarity on their position. On 18 February my Associate contacted the UWU again and was referred to Martin De Rooy, who provided a completed F18 the same day. The UWU, being a bargaining representative for the Agreement supports the approval of the Agreement and has given notice under s 183 of the Act that it wants to be covered by the Agreement. In accordance with s 201(2) of the Act, I note that the Agreement covers this organisation.

[5] Pursuant to s 202(4) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[6] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

•  Clause 5.1 – Annual Leave, as it does not provide additional annual leave for shift workers;

•  Clause 5.1(6) – Annual Leave, as it allows cashing out of annual leave where the remainder would be 4 weeks; and

•  Clause 2.1.8 – Redundancy, which does not state that any decision not to pay redundancy on finding suitable other employment is upon an order by the FWC.

However, noting Clause 1.3 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.

[7] The Agreement is approved and, in accordance with s 54 of the Act, will operate from 26 February 2020. The nominal expiry date of the Agreement is 1 April 2021.

DEPUTY PRESIDENT

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Annexure A