Hort Enterprises Pty Ltd

[2021] FWCA 4432

[2021] FWCA 4432

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Hort Enterprises Pty Ltd
(AG2021/6045)

HORT ENTERPRISES (HE) PTY LTD ENTERPRISE AGREEMENT 2021 TO 2025

Manufacturing and associated industries
DEPUTY PRESIDENT MANSINI	MELBOURNE, 27 JULY 2021

Application for approval of the Hort Enterprises (HE) Pty Ltd Enterprise Agreement 2021 to 2025.

[1] Hort Enterprises Pty Ltd has applied for approval of a single enterprise agreement known as the Hort Enterprises (HE) Pty Ltd Enterprise Agreement 2021 to 2025 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] Since the application was made, the Commission raised concerns about whether: the pre-approval requirements were met, the Agreement contravenes s.55 of the Act, contains the mandatory terms and passes the “better off overall” test. Further information was provided in relation to these concerns.

[3] Noting clause 4.3 of the Agreement, I am satisfied that the more beneficial entitlements of the National Employment Standards in the Act (NES) will prevail where there is an inconsistency between the Agreement and the NES.

[4] The model flexibility term prescribed by the Fair Work Regulations 2009 (Cth) (the Regulations) is taken to be a term of the Agreement, pursuant to s.202(4) of the Act.

[5] Written undertakings were given in accordance with s.190 of the Act and are attached at Annexure A (Undertakings). The employee bargaining representatives did not oppose the Undertakings. 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. Pursuant to s.201(3) of the Act, the Undertakings are taken to be terms of the Agreement.

[6] On the basis of the material contained in the application, further information provided on request of the Commission and the Undertakings, 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.

[7] The Agreement was approved on 27 July 2021 and, in accordance with s.54, will operate from 3 August 2021. The nominal expiry date of the Agreement is 27 July 2025.

[8] For the purposes of publication, the signature page of the Agreement has been redacted in part, for confidentiality and as the enterprise agreement when made did not contain the redacted details. 1

DEPUTY PRESIDENT

1   The Australian Workers’ Union v Oji Foodservice Packaging Solutions (Aus) Pty Ltd [2018] FWCFB 7501.

Printed by authority of the Commonwealth Government Printer

<AE512418  PR732060>

Annexure A